Opinion
Submitted March 19, 2001.
April 5, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered May 4, 1999, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Bryan Lonegan of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Kimberly Sexton of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, P.J., MYRIAM J. ALTMAN, GLORIA GOLDSTEIN, LEO F. McGINITY, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the People failed to disprove his defense of justification by legally sufficient evidence is unpreserved for appellate review (see, CPL 470.05; People v. Hayes, 248 A.D.2d 635). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that the People disproved the defense of justification by legally sufficient evidence. Based on the testimony of the People's witnesses, the jury could have concluded that the victim was unarmed and that the defendant continued stabbing him even after he was lying helplessly on the floor, when the defendant no longer had a reasonable belief that he was in mortal danger (see, Penal Law § 35.15[a]; People v. Arlequin, 214 A.D.2d 747; People v. Ramsay, 199 A.D.2d 428). Upon the same testimony, the jury could also have concluded that the defendant did not reasonably believe that the victim was committing or attempting to commit a burglary (see, Penal Law § 35.20; People v. Webb, 215 A.D.2d 610). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, People v. Firth, 244 A.D.2d 420; People v. Garafolo, 44 A.D.2d 86; People v. Gaimari, 176 N.Y. 84).