Opinion
May 10, 1990
Appeal from the Supreme Court, New York County (Paul Bookson, J.).
Mariano Montilla began a fight with Wilfredo Morrero. Montilla picked up a wooden stick and swung it at Morrero's head. The two ended up wrestling each other to the ground. While Montilla had Morrero pinned down, defendant raised a two-by-four piece of wood and struck Morrero in the head. Morrero was taken to the hospital and died of his injuries several days later. The fight was witnessed by James Hackett and Gregorio Velazquez.
Defendant urges that his actions were justified to prevent Morrero from inflicting serious injury upon Montilla. The People, however, disproved the defense of justification beyond a reasonable doubt. Each witness's testimony demonstrated that defendant did not have a reasonable belief that Morrero was using or was about to use deadly physical force or that the force which he used was necessary to prevent injury (see, Penal Law § 35.15). Indeed, the evidence indicates that Morrero was hit repeatedly and was pinned down when defendant struck the fatal blow to his head. While there are some inconsistencies in the witnesses' testimony, to the extent that they are relevant, they are minor. Moreover, it is well settled that evaluation of the credibility of witnesses is the province of the jury (People v Parks, 41 N.Y.2d 36, 47).
Concur — Kupferman, J.P., Ross, Asch, Ellerin and Rubin, JJ.