| People v Burroughs |
| 2013 NY Slip Op 03236 [106 AD3d 1512] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JavanBurroughs, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), renderedMarch 27, 2009. The judgment convicted defendant, upon his plea of guilty, of robberyin the first degree and robbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated and the matter is remitted to Monroe County Court for furtherproceedings on the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon his guiltyplea of robbery in the first degree (Penal Law § 160.15 [2]) and robbery in thesecond degree (§ 160.10 [1]). We agree with defendant that his factual allocution"negate[d] an essential element of the crime" of robbery in the first degree (People vLopez, 71 NY2d 662, 666 [1988]), inasmuch as defendant stated that the weaponused was a "fake." As the People correctly conceded at oral argument, County Courtfailed to clarify whether defendant or an accomplice was in fact "armed with a deadlyweapon" (§ 160.15 [2]). "[A]t a minimum the record of the . . . pleaproceedings must reflect . . . that defendant's responses to the court'ssubsequent questions removed the doubt about defendant's guilt" of the crime of robberyin the first degree (People v Ocasio, 265 AD2d 675, 678 [1999]). Thus, wevacate his plea of guilty with respect to robbery in the first degree. Additionally, we notethat defendant pleaded guilty to both counts of robbery with the understanding that hewould be sentenced to concurrent determinate terms of imprisonment of five years.Inasmuch as he was induced to plead guilty based on the promise of concurrentsentences, we also vacate the plea with respect to robbery in the second degree, therebyvacating the plea in its entirety (see People v Rosa, 30 AD3d 905, 908 [2006], lv denied7 NY3d 851 [2006]; cf.People v Hinckley, 50 AD3d 1466, 1467 [2008], lv denied 10 NY3d959 [2008]). Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.