People v. Memminger

214 A.D.2d 354, 625 N.Y.S.2d 895, 1995 N.Y. App. Div. LEXIS 4160

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 1995
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Robert Seewald, J.), rendered November 1, 1993, convicting defendant, after a nonjury trial, of two counts of assault in the second degree, promoting prison contraband in the first degree, and criminal possession of a weapon in the fourth degree, and sentencing him, as a second felony offender, to concurrent prison terms of 2½ to 5 years, 2Vz to 5 years, 2Vz to 5 years, and 1 year, respectively, to run consecutively to the undischarged portion of a previously-imposed sentence on an unrelated crime, unanimously affirmed.

Viewing the evidence in the light most favorable to the prosecution and giving it the benefit of every reasonable inference (People v Malizia, 62 NY2d 755, cert denied 469 US 932), we find that the evidence was sufficient as a matter of law to support the verdict finding defendant guilty beyond a reasonable doubt of two counts of assault in the second degree, promoting prison contraband in the first degree, and criminal possession of a weapon in the fourth degree. Furthermore, upon an independent review of the facts, we find that the verdict was not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490). Whether defendant was the aggressor and whether he exceeded his right of self-defense, in this stabbing of a fellow inmate, presented an issue of credibility, which the trial court, acting as the fact finder, resolved against defendant (see, People v Isidore, 201 AD2d 932, lv denied 83 NY2d 872). Concur—Sullivan, J. P., Rosenberger, Ellerin, Ross and Williams, JJ.