Opinion
June 3, 1985
Appeal from the County Court, Westchester County (White, J.).
Judgment affirmed.
"The defense of justification * * * permits one to use deadly physical force on another when one reasonably believes that deadly physical force is being used or imminently will be used by such other person" ( see, People v. Watts, 57 N.Y.2d 299, 301; Penal Law § 35.15 [a]).
The record reveals that the complainant was in the process of retreating from defendant when the latter repeatedly struck him with a baseball bat. Even assuming that the complainant approached defendant with the intent to initiate an altercation, there is no indication that complainant was ever armed with a weapon, nor is there any evidence that defendant actually believed that complainant was about to use deadly physical force against him. In fact, each of the defense witnesses testified that they watched as defendant struck the motionless body of complainant. Defendant's reactions were clearly not those of a man acting in self-defense ( see, People v. Collice, 41 N.Y.2d 906, 907). Accordingly, the trial court properly concluded that he resorted to an excessive and unreasonable degree of force under the circumstances. His justification defense was therefore properly rejected. Lazer, J.P., Bracken, O'Connor and Brown, JJ., concur.