Opinion
March 23, 1998
Appeal from the County Court, Westchester County (Murphy, J.).
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; People v. Candelaria, 206 A.D.2d 385), and, in any event, is 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 [a]; People v. Goetz, 68 N.Y.2d 96; People v. Fousse, 167 A.D.2d 416; People v. Richardson, 155 A.D.2d 488). There was ample evidence in this case that the defendant, after disarming the victim, had been able to retreat safely, but failed to do so. Instead, the defendant stabbed the victim repeatedly while the victim lay on the ground. These actions negated the essential elements of the justification defense (see, People v. Wilson, 168 A.D.2d 696, 699; People v. Douglas, 160 A.D.2d 1015, 1016). Accordingly, the jury's finding that the defendant's conduct was not justified is supported by legally sufficient evidence (see, People v. Contes, 60 N.Y.2d 620) and is not against the weight of the evidence (see, CPL 470.15).
The defendant's sentence is neither harsh nor excessive (see, People v. Suitte, 90 A.D.2d 80).
Mangano, P. J., Miller, Ritter and Thompson, JJ., concur.