Opinion
August 3, 1992
Appeal from the Supreme Court, Kings County (Tomei, J.).
Ordered that the judgment is affirmed.
The defendant has failed to preserve for appellate review his contention that the evidence was legally insufficient to establish his identity as the shooter beyond a reasonable doubt (see, CPL 470.05; People v. Bynum, 70 N.Y.2d 858; People v McNeil, 183 A.D.2d 790). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, 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).
We reject the defendant's contention that the trial court erred in failing to charge the defense of justification. While the evidence demonstrates that the defendant and the deceased engaged in a verbal and physical exchange over the use of a public phone, there is no indication in the record that the deceased was ever armed with a weapon. Nor is there any evidence that the defendant actually believed that the deceased was about to use deadly force against him, or that he could not have retreated in complete safety (see, People v. Porter, 161 A.D.2d 811; People v. Harris, 134 A.D.2d 369; People v. Walters, 112 A.D.2d 390).
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are unpreserved for appellate review or without merit. Mangano, P.J., Thompson, Lawrence and Santucci, JJ., concur.