Opinion
September 30, 1994
Appeal from the Ontario County Court, Harvey, J.
Present — Pine, J.P., Lawton, Fallon, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: There is no merit to the contentions that defendant's conviction of assault in the second degree is not supported by legally sufficient evidence and is against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). The record establishes that, as a result of an altercation with defendant in his cell, Correction Officer Moracco was pushed backward by defendant into a cell wall and struck his head on the wall or the bed frame. Moracco was treated at the hospital for a contusion and swelling to the back of his head. Moracco testified that he was dazed from the blow and in pain. He continued to experience pain for approximately two weeks and took pain relievers. During the altercation, defendant also bit Correction Officer Nolan's finger, severing the fingernail and cutting the finger pad. Nolan testified that the bite caused severe pain that continued for approximately one week. Nolan obtained medical treatment for his finger at the hospital and was out of work for approximately eight weeks. That evidence was sufficient to establish that the officers suffered "physical injury" within the meaning of Penal Law § 10.00 (9) (see, People v. Scott, 162 A.D.2d 479, lv denied 76 N.Y.2d 865; People v Brooks, 155 A.D.2d 680, 681-682, lv denied 76 N.Y.2d 731; People v. Starling, 104 A.D.2d 742).
Defendant contends that the use of the term "moral certainty" in the court's reasonable doubt charge mandates reversal. Because the charge employed only the moral certainty language and did not contain any other objectionable definitions, reversal is not mandated (see, People v. Miller, 194 A.D.2d 230, 232, lv denied 83 N.Y.2d 913).
We have reviewed the remaining contentions of defense counsel and defendant in his pro se supplemental brief and conclude that they are without merit.