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PEOPLE v. RIVERA

No. 209 SSM 43

15 N.Y.3d 844 (2010)

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSE RIVERA, Appellant.

Court of Appeals of New York.

Decided September 23, 2010.

Attorney(s) appearing for the Case

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.

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.

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...

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