People v. Layton , 754 N.Y.S.2d 552 ( 2003 )

Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.), rendered April 15, 1999, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the conviction of robbery in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The defendant correctly contends that he established his affirmative defense that the gun used in the robbery was a BB gun and thus was not a firearm (see Penal Law § 160.15 [4]; People v Wilson, 283 AD2d 339, 340; People v Bowman, 133 AD2d 701). Accordingly, his conviction of the crime of robbery in the first degree must be vacated.

The defendant’s remaining contentions are without merit. Florio, J.P., Feuerstein, McGinity and Schmidt, JJ., concur.