PEOPLE v. SUPHAL (2004)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach, J.), rendered May 7, 2001, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The hearing court providently exercised its discretion in, sua sponte, before rendering its decision on the merits, reopening the suppression hearing to permit the People to present an additional witness on the issue of whether the police had probable cause to arrest the defendant (see People v. Torres, 257 A.D.2d 672, 684 N.Y.S.2d 582;  People v. Colon, 228 A.D.2d 449, 644 N.Y.S.2d 57, revd. on other grounds 90 N.Y.2d 824, 660 N.Y.S.2d 377, 682 N.E.2d 978).

The defendant's contention that the People failed to disprove his justification defense beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2];  People v. Grey, 282 A.D.2d 544, 722 N.Y.S.2d 758;  People v. Hayes, 248 A.D.2d 635, 669 N.Y.S.2d 953;  People v. Candelaria, 206 A.D.2d 385, 614 N.Y.S.2d 432).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the People disproved the justification defense by legally sufficient evidence.   Based on the testimony of the People's witnesses, the jury could have concluded that the defendant was the initial aggressor (see People v. Carrera, 282 A.D.2d 614, 725 N.Y.S.2d 344;  People v. Keefer, 197 A.D.2d 915, 602 N.Y.S.2d 268).   Regardless of whether the defendant was the initial aggressor, the People negated the essential elements of the justification defense by demonstrating that the defendant shot at the fleeing victim a total of 17 times and twice struck the victim in the back (see People v. Leon, 297 A.D.2d 605, 747 N.Y.S.2d 358;  People v. Hayes, supra;  People v. Van Allen, 216 A.D.2d 39, 627 N.Y.S.2d 664;  People v. Arlequin, 214 A.D.2d 747, 625 N.Y.S.2d 613;  People v. Thompson, 212 A.D.2d 647, 622 N.Y.S.2d 578;   People v. Torres, 182 A.D.2d 788, 582 N.Y.S.2d 782).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

The defendant's remaining contention raised in his supplemental pro se brief is without merit.