Opinion
June 2, 1989
Appeal from the Monroe County Court, Egan, J.
Present — Dillon, P.J., Denman, Green, Pine and Balio, JJ.
Judgment unanimously affirmed. Memorandum: The trial court did not err in refusing to charge reckless assault in the third degree (Penal Law § 120.00) as a lesser included offense of assault in the second degree (Penal Law § 120.05). A person acts "recklessly" when he consciously disregards a substantial and unjustifiable risk and his conduct constitutes a gross deviation from the behavior expected of a reasonable person (Penal Law § 15.05). Defendant testified that the complainant stabbed him in the arm with a knife; that in an attempt to protect himself from serious injury or death, he struggled with her for possession of the knife; and that in the course of the struggle, she suffered the cuts to her arm and a wound in the chest. This evidence, viewed favorably to defendant (see, People v. Henderson, 41 N.Y.2d 233, 236), supported his claim of justifiable conduct, but negated any claim of reckless conduct as much as it negated a claim of intentional conduct (see, People v Zayas, 140 A.D.2d 395, lv denied 72 N.Y.2d 869).
Defendant's claim that the court erred in admitting a police officer's testimony concerning defendant's request for counsel in the course of custodial interrogation was not preserved for our review (see, People v. Frankos, 110 A.D.2d 713). Also, defense counsel's objection to expert testimony on relevancy grounds was inadequate to preserve the claim raised on appeal that the testimony was speculative (see, People v. Osuna, 103 A.D.2d 719, affd 65 N.Y.2d 822). We decline to exercise our discretion to review either issue in the interest of justice (CPL 470.15 [a]). Defendant's remaining claim of error lacks merit.