Opinion
No. KA 06-03665.
March 19, 2010.
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 assault in the third degree as a hate crime and harassment in the second degree (two counts).
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (GRAZINA MYERS OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY A. GILLIGAN OF COUNSEL), FOR RESPONDENT.
Present: Smith, J.P., Centra, Fahey and Pine, JJ.
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 of assault in the third degree as a hate crime (Penal Law § 120.00; § 485.05 [1] [a]) and two counts of harassment in the second degree (§ 240.26 [1]). Contrary to the contention of defendant, Supreme Court properly sustained the People's Batson challenge to his use of peremptory challenges to exclude three African-American prospective jurors. Although the court should have set forth its application of the three-step Batson inquiry in more explicit terms to make a "meaningful record" ( People v Payne, 88 NY2d 172, 184), "the actual conduct of the inquiry [is], . . . within the sound discretion . . . of the . . . court[]" ( People v Hameed, 88 NY2d 232, 237, cert denied 519 US 1065), and the record establishes that the court properly conducted the requisite three-step inquiry. The implicit determination of the court "that defendant's race-neutral reason for challenging the prospective juror[s] was pretextual is entitled to great deference on appeal . . ., particularly [because] the proffered reason was demeanor-based[] and . . . the totality of the Batson ruling establishes that[,] in making its determination[] the court employed its unique opportunity to view the [prospective jurors'] actual demeanor" ( People v Fraser, 271 AD2d 205, 205, lv denied 95 NY2d 796).
We reject the further contention of defendant that the evidence of physical injury was legally insufficient to support his conviction of assault in the third degree as a hate crime ( see Penal Law § 10.00; see generally People v Bleakley, 69 NY2d 490, 495). 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 a mild concussion, and that he experienced pain in his jaw and headaches for at least one week following the incident. The element of physical injury "can be established through a victim's credible description of his or her injuries" ( People v Pinero-Baez, 67 AD3d 469, lv denied 13 NY3d 941; see People v Guidice, 83 NY2d 630, 636). Viewing the evidence in the light most favorable to the People ( see People v Contes, 60 NY2d 620, 621), we conclude that "the 'evidence of the subjective pain [of the victim] . . ., the swelling induced by the injury, and the length of time that the pain . . . continued is sufficient . . . to establish physical injury'" ( People v Golden, 309 AD2d 1204, 1206; see also People v Witt, 56 AD3d 324, lv denied 11 NY3d 931; People v Hicks, 35 AD3d 1027, 1029).
Finally, defendant failed to preserve for our review his contention that the prosecutor improperly elicited bolstering testimony ( see CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]).