Opinion
December 19, 1995
Appeal from the Supreme Court, Bronx County (Robert Seewald, J.).
Defendant's contention that the People failed to disprove his justification defense beyond a reasonable doubt is unpreserved as a matter of law (CPL 470.05; People v. Gray, 86 N.Y.2d 10) and we decline to review it in the interest of justice. Were we to review it, we would find, viewing the evidence in a light most favorable to the People ( People v Contes, 60 N.Y.2d 620, 621), that after an altercation with defendant had terminated, the unarmed decedent was stabbed by defendant in the chest and back, factors which clearly negate the justification defense ( People v Jones, 175 A.D.2d 294, lv denied 78 N.Y.2d 1012). Defendant could not have had a reasonable belief that deadly physical force was about to be used upon him; he had every opportunity to retreat safely, as was his obligation (Penal Law § 35.15 [a]; People v Brown, 187 A.D.2d 312, lv denied 81 N.Y.2d 837; People v Flores, 191 A.D.2d 306, lv denied 81 N.Y.2d 1013). Upon an independent review of the facts, we find the verdict was not against the weight of the evidence ( People v Bleakley, 69 N.Y.2d 490).
Defendant also failed to preserve for appellate review his additional contentions that he was deprived of a fair trial by the prosecutor's impeachment of his own witness with prior inconsistent statements and by the court's failure to provide a limiting instruction, in violation of CPL 60.35 (CPL 470.05; People v. Bracy, 174 A.D.2d 527, lv denied 78 N.Y.2d 1074) and we decline to review them in the interest of justice. Were we to review, we would find that, although the introduction of the unsigned, unsworn prior statements of the witness was improper ( People v. Wright, 41 N.Y.2d 118), such error was harmless in light of the overwhelming evidence of defendant's guilt ( People v. Bracy, supra).
Concur — Sullivan, J.P., Ellerin, Wallach and Rubin, JJ.