Opinion
2001-06961
Argued March 13, 2003.
April 7, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered July 3, 2001, convicting him of assault in the first degree, criminal mischief in the fourth degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Jay L. Weiner of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Elaine E. Oh of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, LEO F. McGINITY, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the People failed to disprove his defense of justification by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05; People v. Boyle, 289 A.D.2d 251). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to disprove the defendant's defense of justification beyond a reasonable doubt. The consistent and credible testimony of the People's witnesses placed the defendant as the initial aggressor of the attack which caused serious physical injury to the complainant (see People v. Hogencamp, 296 A.D.2d 662, 663; People v. Young, 240 A.D.2d 974, 976; People v. Spinelli, 165 A.D.2d 888). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contention is unpreserved for appellate review, and, in any event, is without merit.
ALTMAN, J.P., SMITH, McGINITY and CRANE, JJ., concur.