Defendant was convicted of two counts of robbery in the first degree and two counts of burglary in the first degree based upon his display of "what appears to be a pistol, revolver * * * or other firearm" (Penal Law § 140.30; § 160.15 [4]). However, it is an affirmative defense, reducing the crime from the first to the second degree, that such firearm was not a loaded weapon "from which a shot, readily capable of producing death or other serious physical injury, could be discharged" (Penal Law § 140.30; § 140.25 [1] [d]; § 160.15 [4]; § 160.10 [2] [b]). The weapon used by defendant was not capable of firing a real bullet. Although defendant neither requested the court to charge this affirmative defense nor objected to its absence in the court's charge, we find, in the interest of justice, that such an affirmative defense was established as a matter of law and reduce his convictions for robbery and burglary, by display of what appeared to be a pistol, from the first to the second degree, and remand for resentencing on these counts.
Defendant was also illegally sentenced on the convictions for three counts of burglary in the first degree (Penal Law § 140.30) since these crimes are not class B armed felony offenses (see, CPL 1.20; Penal Law § 70.02). A defendant may be sentenced to a minimum of one half the maximum upon his conviction of a class B armed felony offense. Other than this, the minimum must be fixed at one third the maximum. The elements enumerated in CPL 1.20 (41) are not present in Penal Law § 140.30 (2), which requires that a defendant cause physical injury in the course of a burglary, and, therefore, burglary in the first degree as defined in Penal Law § 140.30 (2) is not a class B armed felony offense. The court erred, consequently, in fixing the minimum sentence at one half the maximum and imposing a 12 1/2-to-25-year term of imprisonment, and we reduce these sentences to 8 1/3 to 25 years.
We have examined the defendant's remaining contentions and find them to be without merit.
Concur — Kupferman, J.P., Sullivan, Ross, Asch and Rosenberger, JJ.