682 N.Y.S.2d 80 | N.Y. App. Div. | 1998
—Appeal by the defendant from a judgment of the County Court, Suffolk County (Weissman, J.), rendered January 18, 1996, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.
Contrary to the defendant’s contention, the People disproved his justification defense beyond a reasonable doubt. It is well established that justification is not a defense to the use of deadly physical force unless the actor reasonably believes that another person is about to use deadly physical force against him and he is unable to retreat safely (see, Penal Law § 35.15 [2] [a]; People v Goetz, 68 NY2d 96; People v Hall, 220 AD2d 615; People v Rochester, 168 AD2d 519). Contrary to the defendant’s contention, the People adduced legally sufficient evidence to prove that the defendant was able to retreat safely, but instead chose to return with a loaded firearm and retaliate by shooting the victim (see, People v Contes, 60 NY2d 620). This evidence negated the essential elements of the justification defense (see, People v Candelaria, 206 AD2d 385; People v Wilson, 168 AD2d 696, 699; People v Douglas, 160 AD2d 1015, 1016). Moreover, the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). Rosenblatt, J. P., Ritter, Copertino and Thompson, JJ., concur.
