The People of the State of New York, Respondent, v. Nelson Burgos, Appellant

The People of the State of New York, Respondent, v Nelson Burgos, Appellant. [MAJORITY] Judgment, Supreme Court, Bronx County (Bernard Jackson, J.), rendered March 2, 1988, convicting defendant, after a jury trial of assault in the second degree and sentencing him to an indeterminate prison term of from 216 to 7 years, is unanimously affirmed. After an altercation, defendant stabbed one Luis Rivera twice in the chest and chased after and stabbed him three more times in the back. Aside from his victim, defendant’s actions were witnessed by five New York City firefighters. Defendant’s assertion at trial that he had picked up Rivera’s ice pick during their struggle, and accidentally stabbed him five times, was, not surprisingly, rejected by the jury. Defendant maintains that the trial court erred in its charge to the jury with regard to intent and with regard to the application of the law to defendant’s accident theory. Defendant has failed to preserve these issues for appellate review and we thus decline to reach them (CPL 470.05 [2]; People v Harrell, 59 NY2d 620). Were we to consider them in the interests of justice, however, we nonetheless would find them to be without merit. Concur—Ross, J. P., Asch, Kassal, Wallach and Smith, JJ.