MERCURE, J.P.Page 702
Appeal from a judgment of the County Court of Columbia County (Leaman, J.), rendered April 11, 1997, convicting defendant upon his plea of guilty of the crimes of robbery in the first degree and petit larceny.
Initially, this court granted defense counsel's motion to be relieved of his assignment as counsel for defendant on the ground that there were no nonfrivolous issues that could be raised on appeal ( 248 A.D.2d 763). In light of defendant's motion for reconsideration and this court's decision regarding a codefendant in the instant crimes (see, People v. Espinoza, 253 A.D.2d 983), our previous decision must be revised. As in People v. Espinoza (supra), the fact that defendant informed County Court that the BB gun used in the robbery was broken (cf., People v. Madeo, 103 A.D.2d 901, 902), and there being no other evidence that it was used in any other violent capacity in the course of the crime, the BB gun could not be considered a "dangerous instrument", a term defined by Penal Law § 10.00 (13) as "readily capable of causing death or other serious physical injury" (see, People v. Kilpatrick, 143 A.D.2d 1). Inasmuch as robbery in the first degree requires that the defendant "uses or threatens the immediate use of a dangerous instrument" during the course of committing the crime, and there being no inquiry by County Court to assure that defendant was knowingly waiving this defense, the judgment of conviction must be modified by reversing so much thereof as convicted defendant of the crime of robbery in the first degree.
Inasmuch as an immediate decision appears justified in this matter, this court shall decide the appeal on the record and briefs before it (see, People v. Cruwys, 113 A.D.2d 979,lv denied 67 N.Y.2d 650).
CREW III, YESAWICH JR. and CARPINELLO, JJ., concur.
ORDERED that the judgment is modified, on the law, by reversing so much thereof as convicted defendant of the crime of robbery in the first degree; matter remitted to the County Court of Columbia County for further proceedings not inconsistent with this court's decision; and, as so modified, affirmed.