Opinion
February 4, 1994
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Pine, J.P., Balio, Fallon, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The record does not reveal that the defense of justification was raised upon the trial of the indictment charging defendant with second degree assault (Penal Law § 120.05). Neither the victim nor defendant testified at trial. In People v. Steele ( 26 N.Y.2d 526, 528), the Court of Appeals stated: "Of course, justification, as an affirmative element, need not be disproved in every case. Ordinarily, the possibility of the defense would not appear until injected by the defendant". In any event, had defendant sufficiently raised that defense, we would conclude that the People disproved it beyond a reasonable doubt (see, People v McManus, 67 N.Y.2d 541, 546-547; People v. Sykes, 178 A.D.2d 501, lv denied 79 N.Y.2d 953; People v. Sweeney, 122 A.D.2d 177, 178, lv denied 69 N.Y.2d 886). The People's witness, a police officer, testified that, while on routine vehicular patrol, he saw defendant repeatedly strike the unarmed victim about the head and upper body with a metal pipe. The victim and his clothes were covered with blood and he was bleeding from the head. Whether defendant was the aggressor presented an issue of credibility, which the trial court, acting as the fact finder, resolved against defendant (see, People v. Sweeney, supra, at 178).