
    The People of the State of New York, Respondent, v Leighton Seow, Appellant.
    [599 NYS2d 47]
   —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pincus, J.), rendered November 26, 1990, convicting him of aggravated assault upon a police officer (two counts), robbery in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentencing.

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 [11]), 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 [2]; People v Watts, 57 NY2d 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 NY2d 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 [5]).

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 [2]; People v Day, 73 NY2d 208; People v Catone, 65 NY2d 1003). Moreover, we decline to substitute our discretion for that of the sentencing court (see, People v Suitte, 90 AD2d 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.  