People v. Memminger

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

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.