Opinion
November 15, 1995
Appeal from the Monroe County Court, Marks, J.
Present — Denman, P.J., Green, Wesley, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: The verdict finding defendant guilty of murder in the second degree (Penal Law § 125.25) is not against the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495). At trial, defendant did not deny stabbing the victim but relied upon the defense of justification. The key question for the jury was whether defendant believed the victim was about to use deadly force against him and, if so, whether that belief was reasonable (see, People v Goetz, 68 N.Y.2d 96; People v Comfort, 113 A.D.2d 430). Based upon the evidence that defendant did not see the victim with a weapon that evening, and that the victim was unarmed, and given the nature of the wounds inflicted upon the victim, we conclude that the jury did not fail "to give the evidence the weight it should be accorded" (People v Bleakley, supra, at 495).
The FBI report of the victim's criminal record did not constitute new evidence under CPL 330.30 (3), and was not such evidence as "probably" would have changed the result if a new trial were granted (People v Burnette, 117 A.D.2d 987, 989). Further, the report did not constitute Brady material (see, Brady v Maryland, 373 U.S. 83; United States v Bagley, 473 U.S. 667, 682; People v Vilardi, 76 N.Y.2d 67, 73-74). We conclude, therefore, that the contentions raised by defendant in his pro se supplemental brief are without merit.