
    The People of the State of New York, Respondent, v Lincoln West, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Kings County (Corso, J.), rendered June 22,1979, convicting him of assault in the third degree, upon a jury verdict, and imposing sentence. Judgment affirmed. No opinion. Mangano, Rabin and Cohalan, JJ., concur.

Hopkins, J. P.,

dissents and votes to reverse the judgment and order a new trial, with the following memorandum: The trial court’s failure to charge justification was improper since there is sufficient evidence to support the charge (see People v Steele, 26 NY2d 526; People v Ortiz, 52 AD2d 518; People v Rivera, 74 AD2d 589). Defendant admits that he was in possession of a pocket knife, but denies having used it against the complaining witness. Defendant alleges that the complaining witness, a man 50 to 60 pounds heavier than he, initiated the confrontation by hitting him in the stomach a number of times. The complaining witness substantiated part of the defendant’s allegations. While the complaining witness denies he was the initial aggressor, he does admit that he used a broomstick against defendant, and that he went to his car to get a jack handle to use against defendant. Thus, if the jury had been properly charged on justification, it might have decided on the evidence adduced that defendant’s actions were either completely justified, or at least, that they negated the intent element of the assault count.  