Opinion
1999-11599
Submitted November 16, 2001
December 3, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered November 15, 1999, convicting him of manslaughter in the first degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and tampering with physical evidence (three counts), after a nonjury trial, and imposing sentence.
Andrew C. Fine, New York, N.Y. (Steven J. Miraglia of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Kathleen Murray of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., ANITA R. FLORIO, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the People failed to disprove his defense of justification beyond a reasonable doubt is unpreserved for appellate review, since he never moved in the trial court for dismissal on that ground (see, CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Clinton, 268 A.D.2d 531; People v. Vella, 247 A.D.2d 642). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish that the defendant caused the victim's death by shooting him three times without reason to believe that the victim, who was unarmed, was about to use deadly physical force against him (see, People v. Lewis, 283 A.D.2d 442, lv denied, 96 N.Y.2d 921; People v. Ramsay, 199 A.D.2d 428; People v. Baa, 189 A.D.2d 771; People v. Lemaire, 187 A.D.2d 532). Moreover, the defendant had every opportunity to retreat safely without resorting to the use of deadly physical force (see, Penal Law § 35.15[a]; Matter of Y.K., 87 N.Y.2d 430, 434; People v. Nurse, 277 A.D.2d 256; People v. Snell, 256 A.D.2d 480; People v. Candelaria, 206 A.D.2d 385). Furthermore, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contention is without merit (see, People v. Pons, 68 N.Y.2d 264, 268).
O'BRIEN, J.P., FLORIO, SCHMIDT and SMITH, JJ., concur.