
    The People of the State of New York, Respondent, v Robert Melhado, Appellant.
    Argued May 7, 1981;
    decided June 4, 1981
    
      APPEARANCES OF COUNSEL
    
      Paul A. Lemole for appellant.
    
      Robert M. Morgenthau, District Attorney (Bruce Allen and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to the extent of reversing defendant’s conviction for criminal possession of a weapon in the second degree, the sentence entered thereon should be vacated, and that count of the indictment should be dismissed. As so modified, the order of the Appellate Division should be affirmed.

After a jury trial, defendant was convicted of criminal possession of a weapon in the second and fourth degrees. (Penal Law, §§ 265.03, 265.01.) As to defendant’s conviction for possession of a weapon in the second degree, aside from the testimony that defendant was seen holding a pistol at about the time of the shooting and that shots were fired from the area where defendant was standing with two or three other individuals, there is no evidence that defendant was in possession of a loaded weapon. On the record before us, it can only be concluded that there is insufficient evidence to support defendant’s conviction of criminal possession of a weapon in the second degree.

We have examined defendant’s remaining contentions and found them to be without merit.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified in accordance with the memorandum herein and, as so modified, affirmed.  