Opinion
March 30, 1992
Appeal from the Supreme Court, Queens County (Hanophy, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the defendant's conviction of criminal possession of a weapon in the third degree to criminal possession of a weapon in the fourth degree, and vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing.
A necessary element of criminal possession of a weapon in the third degree as defined by Penal Law § 265.02 (4) is that the accused possess a "loaded firearm" (People v Khan, 146 A.D.2d 806; People v Sutton, 98 A.D.2d 785). Penal Law § 265.00 (15) defines a "loaded firearm" as "any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm". In this case, the People failed to establish that there was ammunition in the weapon or that the defendant possessed ammunition (see generally, People v Rodriguez, 68 N.Y.2d 674, revg 113 A.D.2d 337, on dissenting opn at 343-348). Accordingly, in the interest of justice, we modify the defendant's conviction to the lesser included offense of criminal possession of a weapon in the fourth degree. Criminal possession of a weapon in the fourth degree merely requires possession of "any firearm" (Penal Law § 265.01; People v Cromwell, 150 A.D.2d 715; People v Funchess, 137 A.D.2d 831; People v Weeden, 89 A.D.2d 814).
We have examined the defendant's remaining contentions and find them to be without merit. Harwood, J.P., Eiber, Ritter and Copertino, JJ., concur.