on the basis of the underlying conduct even though the essential elements test was not satisfied. See, People v. Burden, 6 Misc.3d 1033(aXSup. Ct. Bronx Cty. 2005); People v. Milian, 189 Misc.2d 419, 730 N.Y.S.2d 392 (Sup. Ct. N.Y. Cty. 2001). The same serious concern arises in other states, including C