People v. Nurse

277 A.D.2d 256, 715 N.Y.S.2d 863, 2000 N.Y. App. Div. LEXIS 11185

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 2000
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vaughan, J.), rendered December 23, 1996, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

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 or her and he or she 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). The evidence, when viewed in the light most favorable to the People, was legally sufficient to establish that the defendant could have retreated safely, but instead chose to seek out the victim with a loaded firearm in his possession and retaliate by shooting the victim several times (see, People v Contes, 60 NY2d 620). This evidence negated the essential elements of the justification defense advanced by defendant at trial (see, People v Snell, 256 AD2d 480; People v Candelaria, 206 AD2d 385; People v Wilson, 168 AD2d 696; People v Douglas, 160 AD2d 1015).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Thompson, J. P., Luciano, Feuerstein and Schmidt, JJ., concur.