People v. Velasquez
| Decision Date | 11 March 1994 |
| Citation | 609 N.Y.S.2d 717,202 A.D.2d 1037 |
| Parties | PEOPLE of the State of New York, Respondent, v. Nelson VELASQUEZ, Jr., Appellant. |
| Court | New York Supreme Court — Appellate Division |
J. Michael Forsyth, Fayetteville, for appellant.
James B. Vargason, Auburn, for respondent.
Before GREEN, J.P., and PINE, FALLON, CALLAHAN and BOEHM, JJ.
We reject defendant's contention that the People failed to articulate a racially neutral explanation for excusing a prospective juror (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69). The prospective juror had volunteered the information that she had two Hispanic children, one of whom resembled defendant, and the prosecutor exercised a peremptory challenge. The record does not reveal whether the juror was Hispanic. Membership in a "cognizable racial group" is a necessary element in establishing purposeful discrimination (Batson v. Kentucky, supra, at 96, 106 S.Ct. at 1723). Moreover, the People provided a "satisfactory nondiscriminatory explanation" for excluding the juror (People v. Hernandez, 75 N.Y.2d 350, 356, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395; see, People v. Duncan, 177 A.D.2d 187, 193-194, 582 N.Y.S.2d 847, lv. denied 79 N.Y.2d 1048, 584 N.Y.S.2d 1016, 596 N.E.2d 414; People v. Merritt, 166 A.D.2d 912, 561 N.Y.S.2d 666, lv. denied 76 N.Y.2d 988, 563 N.Y.S.2d 777, 565 N.E.2d 526, cert. denied 500 U.S. 955, 111 S.Ct. 2264, 114 L.Ed.2d 716; People v. Burnett, 152 A.D.2d 910, 911, 544 N.Y.S.2d 744).
We also reject defendant's contention that the People failed to prove that the correction officers at the Cayuga County jail were "peace officers", within the meaning of Penal Law § 120.05(3). Peace officers include " * * * correction officers of any state correctional facility or of any penal correctional institution" (CPL 2.10[25]; see, Correction Law § 40[3]. The language "penal correctional institution" is broad enough to encompass a county jail such as the Cayuga County jail (see, Correction Law § 40[2]; see also, 1985 Opns Atty Gen [Inf] 130-131; 1970 Opns Atty Gen [Inf] 49).
The evidence at trial failed to establish that one of the correction officers assaulted by defendant sustained "physical injury", as defined by Penal Law § 10.00(9). Although the officer sought medical attention at the hospital, the record indicates that he sustained a scrape on his arm and a scratch on his head, had a headache and stiff neck for a few days, missed no time from work, and experienced "discomfort". Thus, the statutory requirement of substantial pain or physical impairment was not met (Penal Law § 10.00[9]; § 120.05[3]; see, People v. Foster, 162 A.D.2d 703, 557 N.Y.S.2d 122, lv. denied 76 N.Y.2d 856, 560 N.Y.S.2d 996, 561 N.E.2d 896; People v. Powell, 153 A.D.2d 54, 549 N.Y.S.2d...
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People v. Dowdell
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