Opinion
February 16, 2000
Appeal from Judgment of Supreme Court, Monroe County, Wisner, J. — Assault, 2nd Degree.
PRESENT: GREEN, A. P. J., PINE, PIGOTT, JR., AND SCUDDER, JJ.
Judgment unanimously affirmed.
Memorandum:
Supreme Court did not abuse its discretion in denying Batson motion ( see, Batson v. Kentucky, 476 U.S. 79). prosecutor's explanation for exercising a peremptory to strike a Hispanic juror, that his "body language" unwillingness to look at the prosecutor while he was asking questions of the witness, was race-neutral ( see, People v. Hernandez, 75 N.Y.2d 350, 356-357, affd 500 U.S. 352; People v. McCargo, 226 A.D.2d 480, 481). Defendant failed to establish that the reason given by the prosecutor was pretextual ( see, People v. Payne, 88 N.Y.2d 172, 181).
The court did not abuse its discretion in allowing two witnesses, ages 11 and nine, to give sworn testimony ( see, People v. Homan, 237 A.D.2d 987, 988, lv denied 89 N.Y.2d 1094). Defendant failed to preserve for our review his present contention that the evidence is not legally sufficient to establish that the victim sustained a serious injury ( see, People v. Gray, 86 N.Y.2d 10, 19). The court's Sandoval ruling, permitting the prosecutor to ask defendant if he was convicted of a felony but not allowing the prosecutor to elicit the underlying facts or the sentence received, did not constitute an abuse of discretion ( see, People v. Sandoval, 34 N.Y.2d 371, 375).