Opinion
December 9, 1996.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered October 18, 1994, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.
Before: Rosenblatt, J.P., Sullivan, Copertino and Joy, JJ.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution ( see, People v Contes, 60 NY2d 620), we find that the People disproved the defendant's justification defense beyond a reasonable doubt. Justification is a defense to the use of deadly physical force only when the actor reasonably believes that the other person is about to use deadly physical force against him or her, and is unable to retreat safely (Penal Law § 35.15 [a]; see, People v Goetz, 68 NY2d 96). The evidence here established both that the 19-year-old victim shot to death by the defendant was unarmed, and that the defendant could have safely retreated even had he believed that he was in mortal danger.
To the extent that the prosecutor misstated the law of justification or made other improper comments, the trial court's curative instructions and instruction that the attorneys' summations were not evidence were sufficient to ensure the defendant a fair trial ( see, People v Barnes, 80 NY2d 867, 868).
Finally, the sentence imposed was neither excessive nor un-duly harsh ( see, People v Suitte, 90 AD2d 80).