People v. Sweeney , 504 N.Y.S.2d 714 ( 1986 )

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Sharpe, J.), rendered December 15, 1982, convicting him of assault in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Judgment modified, on the law, by reversing the conviction of criminal possession of a weapon in the fourth degree, vacating the sentence imposed thereon, and dismissing that count of the indictment. As so modified, judgment affirmed.

The defendant’s first trial ended in a mistrial when the jury could not agree on a verdict. After a second trial on the same counts, the defendant was convicted of assault in the first degree and criminal possession of a weapon in the fourth degree. The defendant raised the defense of justification át trial, claiming that he was acting only to protect himself and his codefendant. However, the evidence in the record establishes that the People disproved the defense of justification beyond a reasonable doubt. Whether or not the defendant was the aggressor was primarily a question of credibility for the jury to determine and will not be disturbed on appellate review (see, People v Malizia, 62 NY2d 755, cert denied 469 US 932).

The indictment included four weapon possession charges. At the defendant’s first trial, all four of those charges were dismissed at the close of the People’s case. The trial court’s refusal to present those charges to the jury warrants the inference that they were dismissed for insufficient evidence. Therefore, the defendant should not have been retried on the weapon possession charges (see, CPL 310.60 [2]). We have considered the defendant’s other contentions and find them to be without merit. Mollen, P. J., Lazer, Thompson and Kunzeman, JJ., concur.