People v. Tolbert

—Judgment unanimously affirmed. Memorandum: Defendant was convicted, following a jury trial, of assault in the second degree as a lesser included offense of assault in the first degree and criminal possession of a weapon in the third degree, arising out of a stabbing at a shelter for homeless men. The evidence, viewed in the light most favorable to the People, establishes that defendant was the initial aggressor and that he stabbed an unarmed man in the back while that man was sitting on a bed drinking beer. Thus viewed, the evidence offered by the People disproved the defense of justification beyond a reasonable doubt, and defendant’s assault conviction is not against the weight of the evidence. The jury, by its verdict, rejected defendant’s claim of self-defense and convicted defendant of assault for intentionally causing physical injury to the victim. It follows, therefore, that the jury properly found that defendant possessed the knife "with intent to use the same unlawfully against another” (Penal Law § 265.01 [2]).

We conclude that the court’s instructions on reasonable doubt as a whole adequately conveyed the proper standard to be applied by the jury (see, People v Antommarchi, 80 NY2d 247, 251-252; see also, People v Malloy, 55 NY2d 296, cert denied 459 US 847). In view of defendant’s criminal record and the seriousness of the charges, the court did not abuse its discretion in imposing the maximum sentence. (Appeal from Judgment of Onondaga County Court, Burke, J. — Assault, 2nd Degree.) Present — Green, J. P., Pine, Fallon, Callahan and. Boehm, JJ.