PEOPLE v. HENRY (1997)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rivera, J.), rendered October 16, 1995, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On April 28, 1995, at about 6:00 A.M., the victim was standing on the breakfast line at the mens' shelter where he lived when he got into an argument with the defendant.   According to the victim and two bystanders, the defendant attacked the victim with a tennis racquet and then with a broken beer bottle.   The victim was taken to the hospital, where he received 29 stitches in his head and 26 stitches in his face.   The defendant claimed that his actions were justified because the victim attempted to hit him with a piece of wood embedded with nails.

 Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the defense of justification was disproved beyond a reasonable doubt.   There was legally sufficient evidence to support the conclusion that the defendant was the initial aggressor and the victim was initially unarmed (see, Penal Law § 35.15[1][b];  People v. Soriano, 188 A.D.2d 420, 591 N.Y.S.2d 1008;  People v. Lemaire, 187 A.D.2d 532, 533, 589 N.Y.S.2d 919).   While the defendant contends that the testimony of the prosecution witnesses was incredible, the resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 96, 68 N.E. 112).   The jury's determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).   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[5] ).

MEMORANDUM BY THE COURT.