People v. Hayes

248 A.D.2d 635, 669 N.Y.S.2d 953, 1998 N.Y. App. Div. LEXIS 2844

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1998
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the County Court, Westchester County (Murphy, J.), rendered October 18, 1995, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the People failed to disprove his justification defense beyond a reasonable doubt is unpreserved for appellate review (see, CPL 470.05 [2]; People v Candelaria, 206 AD2d 385), and, in any event, is without merit. 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 Fousse, 167 AD2d 416; People v Richardson, 155 AD2d 488). There was ample evidence in this case that the defendant, after disarming the victim, had been able to retreat safely, but failed to do so. Instead, the defendant stabbed the victim repeatedly while the victim lay on the ground. These actions negated the essential elements of the justification defense (see, People v Wilson, 168 AD2d 696, 699; People v Douglas, 160 AD2d 1015, ). Accordingly, the jury’s finding that the defendant’s conduct was not justified is supported by legally sufficient evidence (see, People v Contes, 60 NY2d 620) and is not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s sentence is neither harsh nor excessive (see, People v Suitte, 90 AD2d 80).

Mangano, P. J., Miller, Ritter and Thompson, JJ., concur.