People v. Dallara ( 1985 )

Appeal by defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered April 12, 1982, convicting him of criminally negligent homicide, after a nonjury trial, and imposing sentence.

Judgment affirmed.

Defendant’s sole defense at trial was justification. While his state of mind is the crucial factor to be considered (People v Miller, 39 NY2d 543, 551), defendant’s subjective belief under the facts and circumstances of the subject incident as they appeared to him concerning the imminence and seriousness of danger must be reasonable (People v Desmond, 93 AD2d 822; People v Miller, supra, p 548; People v Governale, 193 NY 581, 588).

Penal Law § 35.15 (2) specifically prohibits the use of deadly physical force upon another person unless the actor reasonably believes that such person is using or is about to use deadly physical force against him and he cannot with complete safety avoid using deadly physical force by retreating.

Based upon the record, we agree with Criminal Term that the People established beyond a reasonable doubt that the defense of justification was not available to defendant. Defendant was not justified in using deadly physical force against the decedent, and he could have avoided its use by retreating with complete safety. Gibbons, J. P., Thompson, Weinstein and Brown, JJ., concur.