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.