People v. Gutt, 101 A.D.3d 423 (N.Y. App. Div. 2012)
Appellate Division of the Supreme Court of the State of New York
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Defendant’s legal sufficiency claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). A chain of circumstantial evidence amply supported the jury’s conclusion that it was defendant, and not another person involved in the fight, who stabbed the victim. We note that one of the links in this chain was a knife recovered from defendant’s immediate vicinity at the time of his arrest that appeared to be covered with blood (see People v Steele, 287 AD2d 321, 322 [1st Dept 2001], lv denied 97 NY2d 682 [2001] [lay witnesses competent to identify blood from its appearance]).
The court properly declined to submit reckless third-degree assault as a lesser included offense of intentional second-degree assault, since there was no reasonable view of the evidence, viewed in the light most favorable to defendant, that he acted with mere recklessness. Defendant’s act of deliberately stabbing his victim could only be viewed as evincing at least an intent to cause physical injury, and there was no evidence to support a theory of recklessness (see e.g. People v Barnes, 265 AD2d 169 [1st Dept 1999], lv denied 94 NY2d 877 [2000]).
Defendant’s pro se claims are unpreserved, or are unreviewable on the present record, and are in any event without merit. Concur — Saxe, J.P., Friedman, Acosta, Renwick and Freedman, JJ.