Opinion
No. 209 SSM 43.
Decided September 23, 2010.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered April 27, 2010. The Appellate Division affirmed a judgment of the Supreme Court, Bronx County (Thomas A. Farber, J., at trial and sentence), which had convicted defendant, after a jury trial, of criminal possession of a weapon in the second degree.
Defendant was accused of shooting a man to death. He was acquitted of the homicide charges but convicted of criminal possession of a weapon in the second degree. Asserting that his acquittal of the homicide charges was the result of the jury accepting his justification defense, defendant argued that the trial court should have charged criminal possession of a weapon in the fourth degree as a lesser included offense of criminal possession of a weapon in the second degree, which required that the offender have the intent to use the weapon unlawfully. The Appellate Division concluded that no reasonable view of the evidence supported the lesser charge since there was no reasonable possibility that defendant could have been guilty of merely possessing the gun.
People v Rivera, 72 AD3d 576, reversed.
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 [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 [] [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.
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.