People v. Fleming

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Grajales, J.), rendered February 20, 1986, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

We find unpersuasive the defendant’s claim that the evidence adduced by the prosecution failed to disprove the defense of justification beyond a reasonable doubt (see, Penal Law § 35.15 [2] [a]; § 25.00 [1]). The testimony of the prosecution witnesses and the evidence of the location, number and *611severity of the complainant’s wounds strongly indicated that the defendant’s act of repeatedly stabbing the complainant in the back was not reasonably justified by the circumstances and constituted an excessive use of deadly physical force. Upon the exercise of our factual review power, we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt, and that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s challenge to the imposition of a mandatory surcharge upon his conviction (see, Penal Law § 60.35) is premature at this juncture (see, People v Bethea, 133 AD2d 836; People v Williams, 131 AD2d 525; People v Peralta, 127 AD2d 803; People v West, 124 Misc 2d 622). Bracken, J. P., Brown, Weinstein and Spatt, JJ., concur.