September 23, 2010
THE PEOPLE &C., RESPONDENT,
JOSE RIVERA, APPELLANT.
This memorandum is uncorrected and subject to revision before publication in the New York Reports.
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  [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  [possessing any firearm]). (See People v Discala, 45 NY2d 38, 41-42 ). 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, order reversed and a new trial ordered in a memorandum. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
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