
    The People of the State of New York, Respondent, v Robert E. Wasson, Jr., Appellant.
    [701 NYS2d 118]
   —Mercure, J. P.

Appeal from a judgment of the County Court of Columbia County (Leaman, J.), rendered April 11, 1997, convicting defendant upon his plea of guilty of the crimes of robbery in the first degree and petit larceny.

Initially, this Court granted defense counsel’s motion to be relieved of his assignment as counsel for defendant on the ground that there were no nonfrivolous issues that could be raised on appeal (248 AD2d 763). In light of defendant’s motion for reconsideration and this Court’s decision regarding a codefendant in the instant crimes (see, People v Espinoza, 253 AD2d 983), our previous decision must be revised. As in People v Espinoza (supra), the fact that defendant informed County Court that the BB gun used in the robbery was broken (cf., People v Madeo, 103 AD2d 901, 902), and there being no other evidence that it was used in any other violent capacity in the course of the crime, the BB gun could not be considered a “dangerous instrument”, a term defined by Penal Law § 10.00 (13) as “readily capable of causing death or other serious physical injury” (see, People v Kilpatrick, 143 AD2d 1). Inasmuch as robbery in the first degree requires that the defendant “[u]ses or threatens the immediate use of a dangerous instrument” during the course of committing the crime (Penal Law § 160.15 [3]), and there being no inquiry by County Court to assure that defendant was knowingly waiving this defense, the judgment of conviction must be modified by reversing so much thereof as convicted defendant of the crime of robbery in the first degree.

Crew III, Yesawich Jr. and Carpinello, JJ., concur. Ordered that the judgment is modified, on the law, by reversing so much thereof as convicted defendant of the crime of robbery in the first degree; matter remitted to the County Court of Columbia County for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed. 
      
       Inasmuch as an immediate decision appears justified in this matter, this Court shall decide the appeal on the record and briefs before it (see, People v Cruwys, 113 AD2d 979, lv denied 67 NY2d 650).
     