PEOPLE v. SNELL (1998)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Weissman, J.), rendered January 18, 1996, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.

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 [2] [a];  People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 497 N.E.2d 41;  People v. Hall, 220 A.D.2d 615, 633 N.Y.S.2d 39;  People v. Rochester, 168 A.D.2d 519, 562 N.Y.S.2d 757).   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, 467 N.Y.S.2d 349, 454 N.E.2d 932).   This evidence negated the essential elements of the justification defense (see, People v. Candelaria, 206 A.D.2d 385, 614 N.Y.S.2d 432;  People v. Wilson, 168 A.D.2d 696, 699, 563 N.Y.S.2d 561;  People v. Douglas, 160 A.D.2d 1015, 1016, 554 N.Y.S.2d 727).   Moreover, the verdict was not against the weight of the evidence (see, CPL 470.15[5] ).

The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MEMORANDUM BY THE COURT.