People v. Lozier

• Decision Date: 14 December 2022
• Docket Number: 2020–07807,Ind. No. 245/19
• Citation: 211 A.D.3d 851,180 N.Y.S.3d 241
• Parties: The PEOPLE, etc., respondent, v. Johnny LOZIER, appellant.
• Court: New York Supreme Court — Appellate Division

211 A.D.3d 851

180 N.Y.S.3d 241

The PEOPLE, etc., respondent,

v.Johnny LOZIER, appellant.

2020–07807

Ind. No. 245/19

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 14, 2022

December 14, 2022

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.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, BARRY E. WARHIT, JJ.

DECISION & ORDER

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 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), 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 A.D.3d 821, 989 N.Y.S.2d 324 ; People v. Hill, 34 A.D.3d 1130, 1131, 824 N.Y.S.2d 802 ; People v. Ortiz, 16 A.D.3d 831, 833, 791 N.Y.S.2d 709 ). 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 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). 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 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

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 A.D.3d 993, 88 N.Y.S.3d 537 ). 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 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 ; People v. Ellis, 166 A.D.3d 993, 995, 88 N.Y.S.3d 537 ; People v. Shaw, 126 A.D.3d 1016, 1017, 6 N.Y.S.3d 119 ; People v. Bullock, 28 A.D.3d 673, 673, 813 N.Y.S.2d 223 ). In any event, the contention is without merit (see People v. Zeigler, 201 A.D.3d 972, 160 N.Y.S.3d 334 ; People v. Jones, 187 A.D.3d 612, 131 N.Y.S.3d 134 People v. Oliveri, 29 A.D.3d 330, 332, 813 N.Y.S.2d 435 ).

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