| People v Newman |
| 2010 NY Slip Op 02338 [71 AD3d 1509] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John D.Newman, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered November 2, 2006. The judgment convicted defendant, upon a jury verdict, of assaultin the third degree as a hate crime and harassment in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofassault in the third degree as a hate crime (Penal Law § 120.00 [1]; § 485.05 [1] [a])and two counts of harassment in the second degree (§ 240.26 [1]). Contrary to thecontention of defendant, Supreme Court properly sustained the People's Batsonchallenge to his use of peremptory challenges to exclude three African-Americanprospective jurors. Although the court should have set forth its application of the three-stepBatson inquiry in more explicit terms to make a "meaningful record" (People vPayne, 88 NY2d 172, 184 [1996]), "the actual conduct of the inquiry [is] . . .within the sound discretion . . . of the . . . court[ ]" (People vHameed, 88 NY2d 232, 237 [1996], cert denied 519 US 1065 [1997]), and therecord establishes that the court properly conducted the requisite three-step inquiry. The implicitdetermination of the court "that defendant's race-neutral reason for challenging the prospectivejuror[s] was pretextual is entitled to great deference on appeal . . . , particularly[because] the proffered reason was demeanor-based[ ] and . . . the totality of theBatson ruling establishes that[,] in making its determination[,] the court employed itsunique opportunity to view the [prospective jurors'] actual demeanor" (People v Fraser,271 AD2d 205, 205 [2000], lv denied 95 NY2d 796 [2000]).
We reject the further contention of defendant that the evidence of physical injury was legallyinsufficient to support his conviction of assault in the third degree as a hate crime (seePenal Law § 10.00 [9]; see generally People v Bleakley, 69 NY2d 490, 495[1987]). The victim testified that he lost consciousness when defendant punched him in the face,that he was unable to perform certain duties of his job as a police officer because he sustained amild concussion, and that he experienced pain in his jaw and headaches for at least one weekfollowing the incident. The element of physical injury "can be established through a victim'scredible description of his or her injuries" (People v Pinero-Baez, 67 AD3d 469 [2009], lv denied 13NY3d 941 [2010]; see People v Guidice, 83 NY2d 630, 636 [1994]). Viewing theevidence in the light most favorable to the People (see People v Contes, 60 NY2d 620,621 [1983]), we conclude that "the 'evidence of the subjective pain [of the victim][*2]. . . , the swelling induced by the injury, and thelength of time that the pain . . . continued is sufficient . . . to establishphysical injury' " (People v Golden, 309 AD2d 1204, 1206 [2003]; see also People v Witt, 56 AD3d324 [2008], lv denied 11 NY3d 931 [2009]; People v Hicks, 35 AD3d 1027, 1029 [2006]).
Finally, defendant failed to preserve for our review his contention that the prosecutorimproperly elicited bolstering testimony (see CPL 470.05 [2]), and we decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Present—Smith, J.P., Centra, Fahey and Pine, JJ.