People v. Salmons

210 A.D.2d 512, 620 N.Y.S.2d 1008, 1994 N.Y. App. Div. LEXIS 13164

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 1994
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rivera, J.), rendered March 9, 1992, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the People failed to disprove his justification defense beyond a reasonable doubt is unpreserved for appellate review (see, CPL 470.05 [2]), and, in any event, is without merit. Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant assaulted the complainant without reason to believe that the complainant was about to use force against him (see, People v Alvarez, 201 AD2d 487; People v Ortiz, 180 AD2d 653). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s contention that his sentence was harsh and excessive is without merit, because affliction with the HIV virus, standing alone, does not warrant reduction of an otherwise appropriate sentence (see, People v Alvira, 209 AD2d 628; People v King, 184 AD2d 782; People v Perez, 181 AD2d 922). O’Brien, J. P., Hart, Goldstein and Florio, JJ., concur.