People v. Candelaria

• Decision Date: 05 July 1994
• Citation: 614 N.Y.S.2d 432,206 A.D.2d 385
• Parties: The PEOPLE, etc., Respondent, v. Nieves CANDELARIA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 432

614 N.Y.S.2d 432

206 A.D.2d 385

The PEOPLE, etc., Respondent, v. Nieves CANDELARIA, Appellant.

Supreme Court, Appellate Division Second Department.

July 5, 1994.

Philip L. Weinstein, New York City (Linda Poust, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn, (Roseann B. MacKechnie, Camille O'Hara Gillespie, and Joseph Tucker, of counsel), for respondent.

Before MANGANO, P.J., and ALTMAN, HART and FLORIO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pincus, J.), rendered July 17, 1991, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

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] and, in any event, without merit. 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. Fousse, 167 A.D.2d 416, 561 N.Y.S.2d 824; People v. Richardson, 155 A.D.2d 488, 547 N.Y.S.2d 149). The evidence, when viewed in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), was legally sufficient to establish that the defendant caused the victim's death by shooting him several times without reason to believe the victim was about to use deadly force against him (see, People v. Jones, 175 A.D.2d 294, 572 N.Y.S.2d 740; People v. Fousse, 167 A.D.2d 416, 561 N.Y.S.2d 824, supra; People v. Douglas, 160 A.D.2d 1015, 554 N.Y.S.2d 727; People v. Richardson, 155 A.D.2d 488, 547 N.Y.S.2d 149, supra). Several witnesses testified that, following a brief altercation, the defendant pointed a gun at the victim and shot him in the stomach. As the victim fled, the defendant chased him and fired two or three more shots at his back. After the victim had fallen to the ground, the defendant aimed and shot the victim in the head. Although there was some indication that the victim had previously threatened the defendant, it is undisputed that none of the witnesses, or the defendant, ever observed the...