People v. Volious

244 A.D.2d 871, 668 N.Y.S.2d 123

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of assault in the second degree (Penal Law § 120.05 [2]) and criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]). We reject the contention of defendant that the People failed to disprove his justification defense beyond a reasonable doubt (see, People v Goetz, 68 NY2d 96, 114-115). In failing to raise the sufficiency of the instructions to the Grand Jury in his omnibus motion, defendant failed to preserve that issue for our review (see, People v Hill, 236 AD2d 799, lv denied 89 NY2d 1036; People v Moody, 220 AD2d 460). We have reviewed defendant’s remaining contentions and conclude that they are without merit. (Appeal from Judgment of Erie County Court, McCarthy, J.—Assault, 2nd Degree.) Present—Denman, P. J., Hayes, Callahan, Doerr and Fallon, JJ.