People v. Thomas

213 A.D.2d 728, 624 N.Y.S.2d 956, 1995 N.Y. App. Div. LEXIS 3596

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 1995
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Patterson, J.), rendered November 10, 1992, convicting him of manslaughter 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]), and, in any event, without merit. Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish that the defendant fatally stabbed the victim without reasonably believing that the victim was about to use deadly force against him (see, People v Alvarez, 201 AD2d 487; People v Ortiz, 180 AD2d 653). Moreover, 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 [5]).

The defendant’s contentions that the court should not have charged the jury on the issues of the "initial aggressor” and the "duty to retreat” are meritless, as there was sufficient evidence in the record to warrant these instructions (see, 1 CJI[NY] 35.00, at 847, 853). Further, in the context of the entire jury charge, and in light of the overwhelming evidence of the defendant’s guilt, the other comments challenged on appeal constituted harmless error (see, People v Crimmins, 36 NY2d 230).

The defendant’s claim that his sentence was excessive is meritless (see, People v Suitte, 90 AD2d 80), as are his remaining contentions. Rosenblatt, J. P., Miller, Lawrence and Florio, JJ., concur.