PEOPLE v. BIANCO (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered September 8, 2005, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to disprove his justification defense is not preserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Boyle, 289 A.D.2d 251, 251-252, 734 N.Y.S.2d 480).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish that the defendant caused the victim's death by shooting him six times, without reason to believe that the victim, who was unarmed and fleeing, was about to use deadly physical force against him (see People v. Chung, 39 A.D.3d 558, 835 N.Y.S.2d 223;  People v. Thompson, 212 A.D.2d 647, 622 N.Y.S.2d 578;  People v. Griffin, 207 A.D.2d 844, 616 N.Y.S.2d 628;  People v. Candelaria, 206 A.D.2d 385, 385-386, 614 N.Y.S.2d 432;  People v. Lemaire, 187 A.D.2d 532, 533, 589 N.Y.S.2d 919).

Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Douglas, 17 A.D.3d 380, 381, 793 N.Y.S.2d 88;  People v. Rishton, 303 A.D.2d 692, 692-693, 756 N.Y.S.2d 779).

The sentence imposed was not excessive (see People v. Holmes, 12 A.D.3d 532, 783 N.Y.S.2d 862;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).