People v. Mallard

Appellate Division of the Supreme Court of New York

People v. Mallard

207 A.D.2d 1018, 617 N.Y.S.2d 73, 1994 N.Y. App. Div. LEXIS 10295

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 30, 1994

StatusPublished

Cited by3 cases

This text of 207 A.D.2d 1018 (People v. Mallard) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Mallard, 207 A.D.2d 1018, 617 N.Y.S.2d 73, 1994 N.Y. App. Div. LEXIS 10295 (N.Y. Ct. App. 1994).

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Opinion

—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 NY2d 490, 495). The record establishes that, as a result of an altercation with defendant in his cell, Correction Officer Morocco was pushed backward by defendant into a cell wall and struck his head on the wall or the bed frame. Morocco was treated at the hospital for a contusion and swelling to the back of his head. Morocco 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 AD2d 479, lv denied 76 NY2d 865; People v Brooks, 155 AD2d 680, 681-682, lv denied 76 NY2d 731; People v Starling, 104 AD2d 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 AD2d 230, 232, lv denied 83 NY2d 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. (Appeal from Judgment of Ontario County Court, Harvey, J.—Assault, 2nd Degree.) Present—Pine, J. P., Lawton, Fallon, Davis and Boehm, JJ.

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—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 NY2d 490, 495). The record establishes that, as a result of an altercation with defendant in his cell, Correction Officer Morocco was pushed backward by defendant into a cell wall and struck his head on the wall or the bed frame. Morocco was treated at the hospital for a contusion and swelling to the back of his head. Morocco 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 AD2d 479, lv denied 76 NY2d 865; People v Brooks, 155 AD2d 680, 681-682, lv denied 76 NY2d 731; People v Starling, 104 AD2d 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 AD2d 230, 232, lv denied 83 NY2d 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. (Appeal from Judgment of Ontario County Court, Harvey, J.—Assault, 2nd Degree.) Present—Pine, J. P., Lawton, Fallon, Davis and Boehm, JJ.

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Bluebook (online)

207 A.D.2d 1018, 617 N.Y.S.2d 73, 1994 N.Y. App. Div. LEXIS 10295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mallard-nyappdiv-1994.

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