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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROBERT ADAMS, Also Known as DAVID JAMES, Appellant.

Judgment, Supreme Court, New York County, rendered August 16, 1977, unanimously affirmed. This defendant-appellant, indicted for robbery, first degree, entered a negotiated plea of guilty to robbery, second degree, admitting having secured the victim's property "by force and fear inflicted upon him." He did, however, stoutly deny having used a weapon, as charged, adhering to his denial and, at the same time, to his obviously informed consent to accept the negotiated plea. He now maintains that the refusal to admit his display of a weapon in furtherance of the robbery eliminates an element (Penal Law, § 160.10, subd 2, par [b]) which distinguishes second degree robbery, in these circumstances, from third degree and accordingly asks us to reduce his conviction to the latter. Whatever may be his purpose — the sentence imposed of three to six years would be permissible for either degree — he is not entitled to the relief sought. It is obvious from the record that he well understood precisely what he was doing. (People v Serrano, 15 N.Y.2d 304.) Even were this a Serrano case, all that he would be entitled to have would be vacatur of the plea and remand for further proceedings, and this he was eschewed. (Cf. People v Giuliano, 52 A.D.2d 240, 247.)

Concur — Murphy, P.J., Lupiano, Silverman, Markewich and Sullivan, JJ.

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PEOPLE v. ADAMS
(Oct 5, 1978)