New York State Supreme Court, Appellate Division, Fourth Judicial Department
Appealed from Monroe County Court
Background: The defendant appealed from his conviction of murder and two counts of criminal possession of a weapon. He argues that the court’s conclusion that the defendant was not justified in using deadly physical force was against the weight of evidence.
Ruling: The Appellate Division affirmed. The court noted that witness testimony and surveillance footage showed the defendant and victim having an altercation to which the defendant walked away. Two to three minutes later he arrived with a gun, shot the victim as he ran away, and then shot him several more times. The Appellate Division noted that the victim was not using deadly physical force and the defendant had the opportunity to retreat and failed to do so.
Tonya Plan, of the public defender’s office, for the defendant-appellant.