Summary
beating resulting in decreased flexibility, sleeplessness, and prolonged pain to victim's head, back, arm, and ear continuing until the date of trial, over one year later, sufficient to sustain first degree assault conviction
Summary of this case from Angel v. GarvinOpinion
October 7, 1991
Appeal from the County Court, Nassau County (Orenstein, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and are determined to have been established.
At the Batson hearing (Batson v. Kentucky, 476 U.S. 79), the prosecutor was unable to recall his specific reasons for peremptorily striking all but two of 11 female prospective jurors. He provided a statement as to his general practice regarding jury selection, which he was unable to relate to this particular case, and simply denied any discriminatory intent in the exercise of peremptory challenges. At the trial, he had admitted that he was seeking to secure a gender-balanced jury in the face of a venire which he believed to be predominantly female.
Inasmuch as the prosecutor's testimony "amounted to little more than a denial of discriminatory purpose and a general assertion of good faith" (People v. Bozella, 161 A.D.2d 775, 776), the People failed to satisfy their burden of overcoming the presumption of discrimination found by this court (see, People v Dove, 172 A.D.2d 768; People v. Sandy, 164 A.D.2d 898; People v Bozella, supra).
The defendant's claim regarding the sufficiency of the evidence in support of his conviction of assault in the first degree is unavailing. By failing to assert the claims in support of his argument for dismissal of this count of the indictment with specificity before the trial court, the defendant failed to preserve it for appellate review (see, People v. Colavito, 70 N.Y.2d 996; People v. Udzinski, 146 A.D.2d 245). In any event, the victim's testimony regarding the prolonged pain which she endured in her head, back, arm, and ear as a result of the beating she suffered at the hands of the defendant, continuing through the time of trial, which was over a year after the incident, combined with her inability to bend as she once had or to sleep through the night, was sufficient to establish that she sustained "protracted impairment of health" within the meaning of Penal Law § 10.00 (10), and supported a finding by the jury of serious physical injury (see, People v. Kern, 75 N.Y.2d 638, cert denied ___ US ___, 111 S Ct 77).
We have examined the defendant's remaining contentions and find them to be without merit. Kunzeman, J.P., Kooper, Sullivan and O'Brien, JJ., concur.