People v. Candelaria

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pincus, J.), rendered July 17, 1991, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second 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. 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). The evidence, when viewed in the light most favorable to the People (see, People v Contes, 60 NY2d 620), was legally sufficient to establish that the defendant caused the victim’s death by shooting him several times without reason to believe the victim was about to use deadly force against him (see, People v Jones, 175 AD2d 294; People v 386 Fousse, 167 AD2d 416, supra; People v Douglas, 160 AD2d 1015; People v Richardson, 155 AD2d 488, supra). Several witnesses testified that, following a brief altercation, the defendant pointed a gun at the victim and shot him in the stomach. As the victim fled, the defendant chased him and fired two or three more shots at his back. After the victim had fallen to the ground, the defendant aimed and shot the victim in the head. Although there was some indication that the victim had previously threatened the defendant, it is undisputed that none of the witnesses, or the defendant, ever observed the victim carrying a weapon. Moreover, the defendant had every opportunity to retreat safely without resorting to the use of deadly force. Accordingly, the jury’s finding that the defendant’s actions were not justified was supported by legally sufficient evidence. In addition, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]). The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Mangano, P. J., Altman, Hart and Florio, JJ., concur.