Opinion
KA 05-01065.
July 7, 2006.
Appeal from a judgment of the Ontario County Court (James R. Harvey, J), rendered April 14, 2005. The judgment convicted defendant, after a nonjury trial, of assault in the second degree.
Present-Scudder, J.P., Kehoe, Smith, Pine and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a bench trial of assault in the second degree (Penal Law § 120.05), defendant contends that County Court failed to give the evidence the weight it should be accorded in rejecting his justification defense and thus that the verdict is against the weight of the evidence. We reject that contention ( see People v Wimberly, 19 AD3d 518, 519, lv denied 5 NY3d 811; People v Wilt, 18 AD3d 971, 972, lv denied 5 NY3d 771; People u Wolf, 16 AD3d 1167, 1168; see generally People v Bleakley, 69 NY2d 490, 495). The People disproved defendant's justification defense beyond a reasonable doubt by presenting evidence that the actions of defendant and his codefendant in repeatedly kicking the victim in the head and face were not justified by the victim's use or threatened use of physical force against them ( see People v Gaines, 26 AD3d 269; People v Centeno, 291 AD2d 265, 266, lv denied 98 NY2d 649). The sentence is not unduly harsh or severe.