Opinion
June 7, 1993
Appeal from the Supreme Court, Kings County (Pincus, J.).
Ordered that the judgment is affirmed.
This case concerns the defendant's robbery of a so-called gypsy cab driver and a subsequent shoot-out with the police which seriously injured two officers. Contrary to the defendant's claim on appeal, the court properly refused to charge the defense of justification under Penal Law § 35.15. Where, as here, the force used by the claimant of the defense is deadly physical force (see, Penal Law § 10.00), the claimant must show that safe retreat was not possible (unless in one's dwelling and not the initial aggressor) (see, Penal Law § 35.15; People v. Watts, 57 N.Y.2d 299). Here, although the defendant testified in his own behalf, no such evidence was proffered. Therefore, a charge on justification was not warranted.
Viewing the evidence in a light most favorable to the People (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).
In addition, the imposition of consecutive terms of imprisonment on the convictions for aggravated assault upon a police officer and robbery in the first degree was proper. Although the crimes took place over a continuous course of activity, they constituted separate and distinct acts, and none of the completed offenses was a material element of the other offense. Therefore, concurrent sentences were not mandated (see, Penal Law § 70.25; People v. Day, 73 N.Y.2d 208; People v. Catone, 65 N.Y.2d 1003). Moreover, we decline to substitute our discretion for that of the sentencing court (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Sullivan, J.P., Eiber, O'Brien and Pizzuto, JJ., concur.