Opinion
December 21, 1990
Appeal from the Erie County Court, D'Amico, J.
Present — Doerr, J.P., Boomer, Pine, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Defendant argues that the evidence of physical injury was not sufficient to support the conviction for assault in the second degree (see, Penal Law § 10.00). The police officer testified that, in the scuffle with defendant, he suffered scrapes and bruises on his legs and bruises on his knees. He sustained bite wounds to the left shoulder, which broke the skin and caused him "nagging pain" for several days until they began to heal. The officer was given oxygen at the scene, then transported to the hospital emergency room, where he reported that he hurt "all over". He was given a tetanus shot and pain medication, and he missed the following two days of work. In our view, that evidence is sufficient to support the conviction for second degree assault (see, People v. Lundquist, 151 A.D.2d 505, 507, lv. denied 74 N.Y.2d 849; People v. Williams, 147 A.D.2d 960, lv. denied 73 N.Y.2d 1023; cf., People v. Prosser, 130 A.D.2d 972).
We agree with the trial court's conclusion that the prosecutor provided racially neutral reasons for exercising peremptory challenges to two potential black jurors (see, People v. Hernandez, 75 N.Y.2d 350, 355, cert granted ___U.S. ___, 112 L.Ed.2d 201). Whether defendant was so intoxicated as to be unable to form a criminal intent was a question of fact for the jury, and the jury's resolution of that issue in favor of the prosecution is supported by the evidence (see, People v. Lang, 143 A.D.2d 685). We have examined the remaining issues raised by defendant and find them to be lacking in merit.