People v. Diaz

—Judgment unanimously affirmed. Memorandum: Supreme Court did not abuse its discretion in denying defendant’s Batson motion (see, Bat-son v Kentucky, 476 US 79 ). The prosecutor’s explanation for exercising a peremptory challenge to strike a Hispanic juror, that his “body language” indicated unwillingness to look at the prosecutor while he was asking questions of the witness, was race-neutral (see, People v Hernandez, 75 NY2d 350 , 356-357, affd 500 US 352 ; People v McCargo, 226 AD2d 480 , 481). Defendant failed to establish that the reason given by the prosecutor was pretextual (see, People v Payne, 88 NY2d 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 AD2d 987 , 988, lv denied 89 NY2d 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 NY2d 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 NY2d 371 , 375). (Appeal from Judgment of Supreme Court, Monroe County, Wisner, J. — Assault, 2nd Degree.) Present — Green, A. P. J., Pine, Pigott, Jr., and Scudder, JJ.