Opinion
4618
November 16, 2004.
Appeal from judgment, Supreme Court, Bronx County (Richard Lee Price, J.), rendered January 14, 2003, convicting defendant, after a nonjury trial, of two counts of assault in the second degree and sentencing him to consecutive terms of six months, concurrent with five years' probation, unanimously dismissed.
Before: Mazzarelli, J.P., Ellerin, Lerner, Friedman and Sweeny, JJ.
Since defendant has been deported, he is not presently available to obey the mandate of the court in the event of an affirmance ( see People v. Calderon, 5 AD3d 276, lv dismissed 3 NY3d 637). Were we not dismissing the appeal, we would affirm, finding that the verdict, which rejected defendant's justification defense, was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court's determinations concerning credibility ( see People v. Gaimari, 176 NY 84, 94).