PEOPLE v. VALENTE

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed to a term of five years' probation. As so modified, the judgment is affirmed, and the matter is remitted to the County Court, Nassau County, to set the terms and conditions of probation, and for further proceedings pursuant to CPL 460.50 (5).

Having failed to move to withdraw his plea of guilty, the defendant has failed to preserve for appellate review his claim that the court improperly accepted his plea (see, CPL 470.05; People v Pellegrino, 60 N.Y.2d 636). The claim is, in any event, without merit, since the defense provided by Penal Law § 155.15, i.e., that "the property was appropriated under a claim of right made in good faith", is not available in a robbery prosecution but is limited, by the specific terms of the statute, to a larceny prosecution (see, People v Hodges, 113 A.D.2d 514, lv denied 67 N.Y.2d 884; People v Coates, 64 A.D.2d 1).

The sentence should be reduced to the extent indicated. Brown, J.P., Niehoff, Sullivan and Harwood, JJ., concur.