Opinion
December 16, 1998
Appeal from the County Court, Suffolk County (Weissman, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the People disproved his justification defense beyond a reasonable doubt. 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. Hall, 220 A.D.2d 615; People v. Rochester, 168 A.D.2d 519). Contrary to the defendant's contention, the People adduced legally sufficient evidence to prove that the defendant was able to retreat safely, but instead chose to return with a loaded firearm and retaliate by shooting the victim ( see, People v. Contes, 60 N.Y.2d 620). This evidence negated the essential elements of the justification defense ( see, People v. Candelaria, 206 A.D.2d 385; People v. Wilson, 168 A.D.2d 696, 699; People v. Douglas, 160 A.D.2d 1015, 1016). Moreover, the verdict was not against the weight of the evidence ( see, CPL 470.15).
The sentence imposed was not excessive ( see, People v. Suitte, 90 A.D.2d 80).
Rosenblatt, J. P., Ritter, Copertino and Thompson, JJ., concur.