Judgment, Supreme Court, New York County (H. Bell, J.), rendered March 22, 1983, convicting defendant, after Bench trial, of criminal possession of a weapon in the second degree (Penal Law, § 265.03), is unanimously modified, on the law and the facts, and as a matter of discretion in the interest of justice, so as to reduce the conviction to a conviction of criminal possession of a weapon in the third degree (Penal Law, § 265.02, subd [4]), and the case is remitted to the Trial Term with the direction to sentence the defendant accordingly, and the judgment is otherwise affirmed. ¶ On the facts of this case, the evidence does not establish beyond a reasonable doubt that defendant intended to use the pistol unlawfully against another. In this case the interest of justice will be better served by a conviction of criminal possession of a weapon in the third degree.
Concur — Kupferman, J.P., Sandler, Ross, Silverman and Alexander, JJ.