People v Rivera, 15 NY3d 844 (2010)

2010 NY Slip Op 06610 [15 NY3d 844]
September 23, 2010
Court of Appeals

[*1]

In the Matter of The People of the State of New York, Respondent,
v
Jose Rivera, Appellant.

Decided September 23, 2010

People v Rivera, 72 AD3d 576, reversed.

{**15 NY3d at 845} 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 [*2]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.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.