Opinion
June 13, 1985
Appeal from the Supreme Court, New York County (Edwards, J.).
With commendable candor, the People point out that criminal possession of a weapon in the third degree based upon possession of a loaded firearm (Penal Law § 265.02), of which defendant was convicted, is a lesser included offense of criminal possession of a weapon in the second degree based upon possession of a loaded firearm "with intent to use the same unlawfully against another" (Penal Law § 265.03), of which he was also convicted, and thus should be dismissed. The other conviction of criminal possession of a weapon in the third degree, however, is based upon the possession of a defaced weapon and is therefore not a lesser included offense. We modify accordingly.
We have considered defendant's other arguments and find that they are without merit.
Concur — Murphy, P.J., Sullivan, Ross, Lynch and Kassal, JJ.