Opinion
December 1, 1997
Appeal from the Supreme Court, Kings County (Wade, J.).
Ordered that the judgment is affirmed.
There is no merit to the defendant's contention that the prosecution failed to make a prima facie showing that the defense exercised its peremptory challenges on the basis of race. A defendant may not exercise his peremptory challenges in a manner which purposefully excludes prospective jurors who do not share his race ( see, People v. Stiff, 206 A.D.2d 235, cert denied 516 U.S. 832; see also, Batson v. Kentucky, 476 U.S. 79).
The trial court sufficiently complied with the three-step procedure required in determining the allegedly discriminatory use of peremptory challenges ( see, People v. Payne, 88 N.Y.2d 172) and did not err in disallowing two of the defendant's peremptory challenges. After hearing the defendant's reasons for challenging these jurors, and the People's argument in opposition to the challenges, the court ruled that the challenges were pretextual and not race-neutral. Its determination that the challenges were pretextual is entitled to great deference on appeal and ought not to be disturbed where, as here, it is supported by the record ( see, People v. Hernandez, 75 N.Y.2d 350, affd 500 U.S. 352; People v. Payne, 213 A.D.2d 565, affd 88 N.Y.2d 172, supra; People v. Jones, 204 A.D.2d 485). The court's statement that a Batson analysis also required it to consider whether the jurors could be fair, while erroneous, does not warrant setting aside the determination that the challenges were pretextual ( cf., People v. Mack, 220 A.D.2d 617).
The defendant's contention that the court erred in failing to charge assault in the third degree as a lesser-included offense of assault in the first degree is without merit. A reasonable view of the evidence does not support a finding that the defendant merely caused physical injury rather than serious physical injury ( see, People v. Glover, 57 N.Y.2d 61; People v. Eagleston, 194 A.D.2d 623). The victim was slashed in the hand with a box cutter, resulting in a permanent loss of function.
Bracken, J. P., O'Brien, Sullivan and Santucci, JJ., concur.