PEOPLE v. ALSTON (2000)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rios, J.), rendered August 18, 1998, convicting him of criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

There was insufficient evidence to support the defendant's conviction of criminal possession of a weapon in the fourth degree based upon the possession of a dangerous instrument with intent to use it unlawfully against another (see, Penal Law § 265.01[2] ).   Since there was no evidence at trial that the pellet gun was loaded, fired, or capable of being fired, the defendant's conviction of criminal possession of a weapon in the fourth degree must be reversed (see, Matter of Angel Q., 194 A.D.2d 793, 599 N.Y.S.2d 624;  People v. Seabrooks, 120 A.D.2d 691, 502 N.Y.S.2d 4;  People v. Stephens, 97 A.D.2d 523, 468 N.Y.S.2d 31;  People v. Bonefont, 84 A.D.2d 844, 444 N.Y.S.2d 173;  People v. Castaldo, 72 A.D.2d 568, 420 N.Y.S.2d 742;  cf., People v. Colavito, 126 A.D.2d 554, 510 N.Y.S.2d 678, affd. 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512).

In light of our determination, we do not reach the defendant's remaining contentions.

MEMORANDUM BY THE COURT.