| N.Y. App. Div. | Feb 2, 2007
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered June 29, 2005. The judgment convicted defendant, upon a jury verdict, of manslaughter in the first degree and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of manslaughter in the first degree (Penal Law § 125.20 [1]) and criminal possession of a weapon in the second degree (former § 265.03 [2]). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to disprove his justification defense (see People v Cunningham, 13 AD3d 1118, 1120 [2004], lv denied 4 NY3d 829, 5 NY3d 761) and, in any event, that contention lacks merit. The record establishes that defendant shot the victim three times, twice after wrestling the gun away from him during a struggle. All three gunshots were either debilitating or deadly, and one gunshot was to the back of the victim’s head, at close range. The jury could reasonably have concluded that, after disarming the victim, defendant had the opportunity to retreat safely without using deadly force (see People v Littlejohn, 307 AD2d 976 [2003], lv denied 100 NY2d 622 [2003]). Alternatively, the jury could reasonably have concluded that, because defendant shot the victim more than once, his “actions constituted an excessive use of deadly force, and ... it was the excessive portion of the force which caused the victim’s death” (People v Reeder, 209 AD2d 551, 552 [1994], lv denied 85 NY2d 913 [1995]).