People v. Frascone , 176 A.D.2d 128 ( 1991 )

—Judgment, Supreme Court, Bronx County (Bonnie Wittner, J.), rendered April 4, 1989, convicting defendant of robbery in the first degree and attempted robbery in the first degree, and sentencing him to concurrent terms of imprisonment of 6 to 12 years and 4 to 8 years, respectively, unanimously affirmed.

At the plea allocution for the robbery and attempted robbery charges, defendant told the Court that he did not actually have a gun when he committed these crimes, but had merely simulated a gun with his hand. The trial court promised to sentence defendant to the minimum term of incarceration on the robbery conviction, to run concurrently with his attempted robbery conviction, in view of the mitigating circumstance that no gun was used or recovered.

Defendant’s claim that the plea was legally insufficient is not preserved for appellate review, because he failed to make a post-allocution motion to withdraw the plea (People v Lopez, 71 NY2d 662, 667). In any event, there was no need for the trial court to inquire further into defendant’s statements, since the record minutes make clear that defendant’s decision to forego a possible affirmative defense was part of a knowing and voluntary plea bargain. (People v Mitchell, 78 AD2d 608.) Concur — Carro, J. P., Wallach, Kupferman and Smith, JJ.