PEOPLE v. MORENO (2006)

On appeal from a judgment convicting him following a bench trial of assault in the second degree (Penal Law § 120.05[2] ), defendant contends that County Court failed to give the evidence the weight it should be accorded in rejecting his justification defense and thus that the verdict is against the weight of the evidence.   We reject that contention (see People v. Wimberly, 19 A.D.3d 518, 519, 798 N.Y.S.2d 470, lv. denied 5 N.Y.3d 811, 803 N.Y.S.2d 40, 836 N.E.2d 1163;  People v. Wilt, 18 A.D.3d 971, 972, 794 N.Y.S.2d 724, lv. denied 5 N.Y.3d 771, 801 N.Y.S.2d 266, 834 N.E.2d 1276;  People v. Wolf, 16 A.D.3d 1167, 1168, 792 N.Y.S.2d 743;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The People disproved defendant's justification defense beyond a reasonable doubt by presenting evidence that the actions of defendant and his codefendant in repeatedly kicking the victim in the head and face were not justified by the victim's use or threatened use of physical force against them (see People v. Gaines, 26 A.D.3d 269, 812 N.Y.S.2d 11;  People v. Centeno, 291 A.D.2d 265, 266, 737 N.Y.S.2d 281, lv. denied 98 N.Y.2d 649, 745 N.Y.S.2d 508, 772 N.E.2d 611).   The sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: