
    The People of the State of New York, Respondent, v Ramar Alston, Appellant.
    [704 NYS2d 608]
   —Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rios, J.), rendered August 18, 1998, convicting him of criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

There was insufficient evidence to support the defendant’s conviction of criminal possession of a weapon in the fourth degree based upon the possession of a dangerous instrument with intent to use it unlawfully against another (see, Penal Law § 265.01 [2]). Since there was no evidence at trial that the pellet gun was loaded, fired, or capable of being fired, the defendant’s conviction of criminal possession of a weapon in the fourth degree must be reversed (see, Matter of Angel Q., 194 AD2d 793; People v Seabrooks, 120 AD2d 691; People v Stephens, 97 AD2d 523; People v Bonefont, 84 AD2d 844; People v Castaldo, 72 AD2d 568; cf., People v Colavito, 126 AD2d 554, affd 70 NY2d 996).

In light of our determination, we do not reach the defendant’s remaining contentions. Ritter, J. P., Altman, Krausman and McGinity, JJ., concur.  