Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Andrias, Saxe, Moskowitz, Acosta, JJ.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered December 1, 2009, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.
The court properly determined that there was no reasonable view of the evidence, viewed in the light most favorable to defendant, to support the submission of a charge on the justification defense (see People v Reynoso, 73 NY2d 816 ; People v Watts, 57 NY2d 299 ). Defendant was observed repeatedly stomping the victim's head and chest with his heavy boots, while the victim was on the ground covered in blood. Under the circumstances, defendant's boots constituted a dangerous instrument within the meaning of Penal Law § 10.00; see People v Carter, 53 NY2d 113, 116-117 ), and his conduct, which caused the victim to sustain significant injuries, constituted deadly physical force within the meaning of Penal Law § 10.00(11). Moreover, the evidence showed that defendant had an opportunity to safely retreat while the victim was lying on the ground (see People v Taylor, 92 AD3d 556 ; People v Mayorquin, 30 AD3d 317 , lv denied 7 NY3d 850 ).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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