People v. Mitchell

175 A.D.2d 220

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldstein, J.), rendered May 26, 1988, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, we find that the People disproved his justification defense beyond a reasonable doubt. It is well settled that justification is not a defense to the use of deadly physical force unless the actor reasonably believes that another person is using or is about to use deadly physical force against him and he is not able to retreat with complete safety (Penal Law § 35.15 [2] [a]; see, People v Goetz, 68 NY2d 96, 105-107; People v McManus, 67 NY2d 541, 545-547; People v Light, 170 AD2d 416; People v Fousse, 167 AD2d 416). Although the defendant shot the victim after the victim first fired several shots into the ground, the defendant fired the fatal shot almost 30 seconds later, during which time the victim’s companion had pushed the victim back, stood in front of the victim, and told him, "It ain’t worth it”.

We have considered the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Eiber, Balletta and Ritter, JJ., concur.