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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Joseph BENTLEY, Defendant-Appellant.

Decided: May 20, 2004

NARDELLI, J.P., TOM, ANDRIAS, FRIEDMAN, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), for respondent.

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered June 27, 2000, convicting defendant, after a jury trial, of assault in the first degree and sentencing him, as a persistent felony offender, to a term of 25 years to life, unanimously affirmed.

 Defendant's guilt of depraved indifference assault (Penal Law § 120.10 [3] ) was proven beyond a reasonable doubt and was not against the weight of the evidence.   Defendant, who on a previous occasion had assaulted his ex-girlfriend after they had broken up, spontaneously stabbed her brother as he sought to protect his sister from another confrontation with defendant.   Given such circumstances and the uncontroverted evidence that defendant stabbed his victim in the back, causing a 2 1/212-inch deep wound under his left armpit and a collapsed lung, as well as the treating physician's testimony that such wound could possibly have been fatal, the jury reasonably concluded that the acts charged reflected defendant's depraved indifference to human life and that his reckless infliction of serious physical injury on his victim created a grave risk of death.

 We have considered defendant's other points regarding the court's charge on depraved indifference, its supplemental instruction concerning the order in which the jury could consider the charges, and the constitutionality of Penal Law § 120.10(3) and find them either unpreserved or waived and we decline to review them in the interest of justice.   Finally, defendant's claim that, after he spat in the prosecutor's face, the court improperly increased his sentence is without merit and we find the sentence imposed appropriate.