PEOPLE v. GITTENS (2001)

Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), rendered July 21, 1994, convicting defendant, after a jury trial, of attempted assault in the second degree and criminal tampering in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 1 2/323 to 3 1/313 years and 1 year, respectively, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning credibility.   The evidence warranted the inference that when defendant swung a chair at the officer he did so with intent to cause physical injury.   By pushing a metal rod up and down in a subway turnstile's token slot, defendant engaged in “tampering” within the meaning of Penal Law § 145.15.

 The court's justification charge conveyed the proper standards as applicable to the facts.   The court properly refused defendant's request to instruct the jury concerning justifiable use of force by an initial aggressor after withdrawal from a confrontation, since there was no reasonable view of the evidence that at the time of his use of force defendant had “withdrawn from the encounter and effectively communicated such withdrawal” (Penal Law § 35.15 [1][b] ).