| People v Gutt |
| 2012 NY Slip Op 08260 [101 AD3d 423] |
| December 4, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v AdolfGutt, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Caleb Kruckenberg of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered June 2, 2009,convicting defendant, after a jury trial, of attempted assault in the first degree and assault in thesecond degree, and sentencing him, as a persistent violent felony offender, to an aggregate termof 16 years to life, unanimously affirmed.
Defendant's legal sufficiency claim is unpreserved and we decline to review it in the interestof justice. As an alternative holding, we reject it on the merits. We also find that the verdict wasnot against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). A chain ofcircumstantial evidence amply supported the jury's conclusion that it was defendant, and notanother person involved in the fight, who stabbed the victim. We note that one of the links in thischain was a knife recovered from defendant's immediate vicinity at the time of his arrest thatappeared to be covered with blood (see People v Steele, 287 AD2d 321, 322 [1st Dept2001], lv denied 97 NY2d 682 [2001] [lay witnesses competent to identify blood from itsappearance]).
The court properly declined to submit reckless third-degree assault as a lesser includedoffense 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 anintent 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 94NY2d 877 [2000]).
Defendant was properly adjudicated a persistent violent felony offender. Defendant waivedhis constitutional double jeopardy challenge to his 1995 violent felony conviction claim byfailing to raise it at the time of his persistent violent felony adjudication (see People v Alvarado, 67 AD3d430 [1st Dept 2009], lv denied 13 NY3d 936 [2010]). As an alternative holding, wereject it on the merits. In the 1995 case, defendant pleaded guilty but withdrew that plea. Thisrestored the original indictment (see CPL 220.60 [3]) and rendered the original plea anullity for double jeopardy purposes, so that there was no bar to further prosecution (seePeople v Bartley, 47 NY2d 965 [1979]). We find defendant's contrary interpretation of therecord of the 1995 proceedings to be unpersuasive.[*2]
Defendant's pro se claims are unpreserved, or areunreviewable on the present record, and are in any event without merit. Concur—Saxe,J.P., Friedman, Acosta, Renwick and Freedman, JJ.