People v. Whitfield

—Judgment unanimously affirmed. Memorandum: The verdict finding defendant guilty of murder in the second degree (Penal Law § 125.25 [2]) is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). At trial, defendant did not deny stabbing the victim but relied upon the defense of justification. The key question for the jury was whether defendant believed the victim was about to use deadly force against him and, if so, whether that belief was reasonable (see, People v Goetz, 68 NY2d 96; People v Comfort, 113 AD2d 430). Based upon the evidence that defendant did not see the victim with a weapon that evening, and that the victim was unarmed, and given the nature of the wounds inflicted upon the victim, we conclude that the jury did not fail "to give the evidence the weight it should be accorded” (People v Bleakley, supra, at 495). The FBI report of the victim’s criminal record did not constitute new evidence under CPL 330.30 (3), and was not such evidence as "probably” would have changed the result if a new trial were granted (People v Burnette, 117 AD2d 987, 989). Further, the report did not constitute Brady material (see, Brady v Maryland, 373 US 83; United States v Bagley, 473 US 667, 682; People v Vilardi, 76 NY2d 67, 73-74). We conclude, therefore, that the contentions raised by defendant in his pro se supplemental brief are without merit. (Appeal from Judgment of Monroe County Court, Marks, J.—Murder, 2nd Degree.) Present—Denman, P. J., Green, Wesley, Balio and Boehm, JJ.