The People v. Jose Rivera
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 209 SSM 43
The People &c.,
Respondent,
v.
Jose Rivera,
Appellant.
Submitted by Susan H. Salomon, for appellant.
Submitted by Karen Swiger, for respondent.
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
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SSM No. 43
(Penal Law § 265.03 [1] [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]).
Discala, 45 NY2d 38, 41-42 [1978]).
(See People v
Defendant's request for a
lesser included offense charge should therefore have been
granted.
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On review of submissions pursuant to section 500.11 of the Rules,
order reversed and a new trial ordered in a memorandum. Chief
Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott
and Jones concur.
Decided September 23, 2010
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