
    [935 NE2d 809, 909 NYS2d 17]
    The People of the State of New York, Respondent, v Jose Rivera, Appellant.
    Decided September 23, 2010
    
      APPEARANCES OF COUNSEL
    
      Center for Appellate Litigation, New York City (Susan H. Salomon and Robert S. Dean of counsel), for appellant.
    
      Robert T. Johnson, District Attorney, Bronx (Karen Swiger and Peter D. Coddington of counsel), for respondent.
   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 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.  