Opinion
January 11, 1993
Appeal from the Supreme Court, Queens County (Eng, J.).
Ordered that the judgment is affirmed.
The defendant's conviction arose out of the shooting death of James Baker after Baker had become involved in an altercation with an unidentified male Baker left the scene and returned several minutes later with a baseball bat. Baker and the defendant began arguing and the defendant backed up and shot Baker. The defendant fired several more shots after Baker began to run away. Upon trial, the defendant presented a justification defense, claiming that he feared Baker would hit him with the bat.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it establishes that the defense of justification was disproved beyond a reasonable doubt (see, People v. Desmond, 125 A.D.2d 585). An eyewitness testified that although the victim had a bat in his hand, he never swung it at the defendant and pulled the bat back after the defendant took out a gun. Therefore, the jury could have concluded that the defendant did not reasonably believe that the deceased was about to use deadly physical force against him and, consequently, that there was no justifiable basis for the defendant's resort to deadly physical force (see, People v. Sykes, 178 A.D.2d 501; People v. Goetz, 68 N.Y.2d 96, 106-107). Further, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
The defendant also contends that he was denied a fair trial because the prosecutor referred to a witness in his opening statement who did not testify at trial, and the witness was referred to again during the testimony of the arresting officer. This claim is unpreserved for appellate review as the defendant failed to object during the officer's testimony and failed to move for a mistrial on that specific ground at the close of the People's case (see, People v. Rizzo, 175 A.D.2d 221; People v Fleming, 70 N.Y.2d 947; People v. De Tore, 34 N.Y.2d 199, cert denied 419 U.S. 1025).
Finally, we find that the sentencing court properly denied the defendant youthful offender status and that the sentence imposed was not excessive (see, People v. Malave, 179 A.D.2d 419; People v. Suitte, 90 A.D.2d 80). Balletta, J.P., Eiber, O'Brien and Santucci, JJ., concur.