| People v Lozier |
| 2022 NY Slip Op 07077 [211 AD3d 851] |
| December 14, 2022 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York,
Respondent, v Johnny Lozier, Appellant. |
LaMarche Sefranko Law PLLC, Cohoes, NY (Nicholas J. Evanovich III of counsel), for appellant.
Thomas E. Walsh II, District Attorney, New City, NY (Jacob B. Sher of counsel; Heather A. Najman on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Kevin F. Russo, J.), rendered September 1, 2020, convicting him of sexual abuse in the first degree and endangering the welfare of a child, after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guilt of each of the crimes of which he was convicted beyond a reasonable doubt. Contrary to the defendant's arguments, there was sufficient evidence that he subjected the complainant to sexual contact (see Penal Law § 130.00 [3]), and, furthermore, the element of sexual gratification could be inferred from the circumstances and the defendant's conduct (see People v Wiley, 119 AD3d 821 [2014]; People v Hill, 34 AD3d 1130, 1131 [2006]; People v Ortiz, 16 AD3d 831, 833 [2005]). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that he was deprived of a fair trial because he wore prison attire at trial is unpreserved for appellate review (see People v Ellis, 166 AD3d 993 [2018]). The defendant did not mention the issue until after the People had rested and at no time did the defendant make an application for a mistrial or to adjourn in order to obtain civilian clothes (see CPL 470.05 [2]; Estelle v Williams, 425 US 501 [1976]; People v Ellis, 166 AD3d 993, 995 [2018]; People v Shaw, 126 AD3d 1016, 1017 [2015]; People v Bullock, 28 AD3d 673, 673 [2006]). In any event, the contention is without merit (see People v Zeigler, 201 AD3d 972 [2022]; People v Jones, 187 AD3d 612 [2020]; People v Oliveri, 29 AD3d 330, 332 [2006]). Connolly, J.P., Christopher, Ford and Warhit, JJ., concur.