Opinion
May 11, 1987
Appeal from the Supreme Court, Kings County (Heller, J.).
Ordered that the judgment is affirmed.
The defendant contends that the court erred in refusing to instruct the jury that he was justified in his assault upon the police officers because their use of force was excessive. A justification charge must be given when, viewing the evidence in the light most favorable to the defendant, an inference may be drawn that the officers' use of force to effectuate the arrest was excessive (see, People v. Padgett, 60 N.Y.2d 142; People v Sanza, 37 A.D.2d 632). Under no reasonable view of the facts can the defendant's assault be considered justifiable, especially given the fact that he initially assaulted the officers without provocation (cf., People v. Stevenson, 31 N.Y.2d 108).
The sentence imposed was not excessive (see, People v Brathwaite, 63 N.Y.2d 839; People v. Suitte, 90 A.D.2d 80). Mangano, J.P., Niehoff, Weinstein and Kunzeman, JJ., concur.