
    The People of the State of New York, Respondent, v Richard Rivera, Appellant.
   — Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered September 20, 1990, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the defendant’s conviction of criminal possession of a weapon in the third degree to criminal possession of a weapon in the fourth degree, and vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing.

A necessary element of criminal possession of a weapon in the third degree as defined by Penal Law § 265.02 (4) is that the accused possess a "loaded firearm” (People v Khan, 146 AD2d 806; People v Sutton, 98 AD2d 785). Penal Law § 265.00 (15) defines a "loaded firearm” as "any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm”. In this case, the People failed to establish that there was ammunition in the weapon or that the defendant possessed ammunition (see generally, People v Rodriguez, 68 NY2d 674, revg 113 AD2d 337, on dissenting opn at 343-348). Accordingly, in the interest of justice, we modify the defendant’s conviction to the lesser included offense of criminal possession of a weapon in the fourth degree. Criminal possession of a weapon in the fourth degree merely requires possession of "any firearm” (Penal Law § 265.01 [1]; People v Cromwell, 150 AD2d 715; People v Funchess, 137 AD2d 831; People v Weeden, 89 AD2d 814).

We have examined the defendant’s remaining contentions and find them to be without merit. Harwood, J. P., Eiber, Ritter and Copertino, JJ., concur.  