People v. Ramirez

269 A.D.2d 611, 704 N.Y.S.2d 271, 2000 N.Y. App. Div. LEXIS 2303

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kangs County (Harkavy, J.), rendered June 8, 1995, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first 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 Hayes, 248 AD2d 635; People v Candelaria, 206 AD2d 385), and, in any event, is without merit. Justification is not a defense to the use of deadly physical force unless the actor reasonably believed that another person was about to use deadly physical force against him and the actor was unable to retreat safely (see, Penal Law § 35.15 [2] [a]; People v Goetz, 68 NY2d 96; People v Snell, 256 AD2d 480; People v Hall, 220 AD2d 615). The People adduced legally sufficient evidence to prove that the defendant, after an initial confrontation with the victims, left the area only to return with a loaded firearm and shoot two people, killing one, as they stood within range of numerous bystanders. This evidence negated the essential elements of the justification defense (see, People v Snell, supra; People v Candelaria, supra; People v Wilson, 168 AD2d 696). 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]).

Contrary to the defendant’s contention, his sentence was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions, including those in his pro se supplemental brief, are unpreserved for appellate review and, in any event, without merit. Thompson, J. P., Sullivan, Krausman and Smith, JJ., concur.