Opinion
2002-04647.
Decided June 21, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered May 15, 2002, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (Sarah J. Berger of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, John Minardo, and Andrew Davin Stillufsen of counsel), for respondent.
Before: HOWARD MILLER, J.P., GLORIA GOLDSTEIN, BARRY A. COZIER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The evidence before the grand jury established that when the defendant slashed the victim across the chest with a box cutter, the victim was not armed, and the defendant had no reason to believe that the victim was carrying a weapon or was about to use deadly physical force against him ( see People v. Reynoso, 73 N.Y.2d 816; People v. Hosein, 221 A.D.2d 563; People v. Porter, 161 A.D.2d 811; People v. Harris, 134 A.D.2d 369; People v. Figueroa, 111 A.D.2d 765). Therefore, the prosecutor was not obligated to give the grand jury a justification charge.
The defendant's remaining contentions either are unpreserved for appellate review or without merit ( see People v. Hayes, 97 N.Y.2d 203, 208; People v. Goetz, 68 N.Y.2d 96; People v. Foy, 32 N.Y.2d 473, 478; People v. Jones, 294 A.D.2d 517).
H. MILLER, J.P., GOLDSTEIN, COZIER and MASTRO, JJ., concur.