Opinion
October 23, 1995
Appeal from the County Court, Suffolk County (Mallon, J.).
Ordered that the judgment is affirmed.
The defendant's contention that his arrest was in violation of Payton v. New York ( 445 U.S. 573) is without merit. Although the hearing court erred by applying the wrong standard in its decision and concluding that it did not matter when the defendant's girlfriend consented to the search of her apartment (see, People v. Harris, 77 N.Y.2d 434), there is a sufficient basis in the hearing record to conclude that the girlfriend, indisputably a person with authority over the premises, consented in writing to allow the police to search her apartment before the defendant was arrested there (see, People v. Toro, 198 A.D.2d 532; People v. Greenberg, 187 A.D.2d 528).
The defendant's contention that the People failed to disprove his justification defense is unpreserved for appellate review (see, CPL 470.05; People v. Arlequin, 214 A.D.2d 747; People v. Alvarez, 201 A.D.2d 487). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it is legally sufficient to disprove the defense of justification and to establish the defendant's guilt of murder in the second degree beyond a reasonable doubt. There was sufficient evidence presented at the trial to enable the jury to conclude that the defendant did not reasonably believe that the victim was about to use deadly physical force and that the defendant had an opportunity to retreat safely (see, Penal Law § 35.15 [a]; People v. Alvarez, supra; People v. Richardson, 155 A.D.2d 488). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict is not against the weight of the evidence (see, CPL 470.15).
The sentence that was imposed is not excessive (see, People v Suitte, 90 A.D.2d 80).
We have considered the defendant's remaining contentions and find them to be without merit. Sullivan, J.P., O'Brien, Copertino and Krausman, JJ., concur.