THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
JOSE RIVERA, Appellant.
No. 209 SSM 43
Court of Appeals of New York.
Decided September 23, 2010.*845 Center for Appellate Litigation, New York City (Susan H. Salomon and Robert S. Dean of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Karen Swiger and Peter D. Coddington of counsel), for respondent.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be reversed and a new trial ordered.
There was a reasonable basis in the evidence viewed in the light most favorable to defendant for finding defendant not guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b] [possessing a "loaded firearm" "with intent to use the same unlawfully against another"]), and yet guilty of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1] [possessing any firearm]). (See People v Discala, 45 NY2d 38, 41-42 [1978].) Defendant's request for a lesser included offense charge should therefore have been granted.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.