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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Timothy GREEN, Defendant-Appellant.

Decided: August 31, 2006

TOM, J.P., SAXE, FRIEDMAN, SULLIVAN, McGUIRE, JJ. Laura R. Johnson, The Legal Aid Society, New York (Cheryl P. Williams of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Gregory H. Mansfield of counsel), for respondent.

Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered July 13, 2004, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of 2 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112 [1903] ).   The evidence, including testimony that in the midst of a verbal dispute with the victim over a debt owed by defendant, defendant proceeded to stab the victim multiple times, disproved defendant's justification defense beyond a reasonable doubt.

The court properly refused to include in its justification charge an instruction on the use of deadly physical force to prevent the commission of a robbery (Penal Law § 35.15[2][b] ).  There was no reasonable view of the evidence, viewed in the light most favorable to defendant, that at the time of the assault the victim was using or threatening the immediate use of force to obtain money (see Penal Law § 160.00).

Defendant did not preserve his claim that the court's justification charge was also deficient because it did not include an instruction that an acquittal based on justification would remove from the jury's consideration any lesser charges based on the same conduct, and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the justification charge, viewed as a whole (see People v. Coleman, 70 N.Y.2d 817, 523 N.Y.S.2d 433, 517 N.E.2d 1319 [1987] ), properly conveyed that principle.