People v. Boyd

Dec 19, 1995
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—Judgment, Supreme Court, Bronx County (Robert Seewald, J.), rendered September 13, 1993, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him to a term of 2 to 6 years, unanimously affirmed.

Defendant’s contention that the People failed to disprove his justification defense beyond a reasonable doubt is unpreserved as a matter of law (CPL 470.05 [2]; People v Gray, 86 NY2d 10) and we decline to review it in the interest of justice. Were we to review it, we would find, viewing the evidence in a light *315most favorable to the People (People v Contes, 60 NY2d 620, 621), that after an altercation with defendant had terminated, the unarmed decedent was stabbed by defendant in the chest and back, factors which clearly negate the justification defense (People v Jones, 175 AD2d 294, lv denied 78 NY2d 1012). Defendant could not have had a reasonable belief that deadly physical force was about to be used upon him; he had every opportunity to retreat safely, as was his obligation (Penal Law § 35.15 [2] [a]; People v Brown, 187 AD2d 312, lv denied 81 NY2d 837; People v Flores, 191 AD2d 306, lv denied 81 NY2d 1013). Upon an independent review of the facts, we find the verdict was not against the weight of the evidence (People v Bleakley, 69 NY2d 490).

Defendant also failed to preserve for appellate review his additional contentions that he was deprived of a fair trial by the prosecutor’s impeachment of his own witness with prior inconsistent statements and by the court’s failure to provide a limiting instruction, in violation of CPL 60.35 (CPL 470.05 [2]; People v Bracy, 174 AD2d 527, lv denied 78 NY2d 1074) and we decline to review them in the interest of justice. Were we to review, we would find that, although the introduction of the unsigned, unsworn prior statements of the witness was improper (People v Wright, 41 NY2d 118), such error was harmless in light of the overwhelming evidence of defendant’s guilt (People v Bracy, supra). Concur — Sullivan, J. P., Ellerin, Wallach and Rubin, JJ.