People v Slater (Lloyd)

[*1] People v Slater (Lloyd) 2007 NY Slip Op 51270(U) [16 Misc 3d 128(A)] Decided on June 20, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 20, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2005-67 K CR.

The People of the State of New York, Respondent,

against

Lloyd Slater, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John W. Carter, J.), rendered November 4, 2004. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the second degree and endangering the welfare of a child.

Judgment of conviction affirmed.

Defendant was charged with sexual abuse in the second degree (Penal Law § 130.60 [2]) and endangering the welfare of a child (Penal Law § 260.10 [1]) arising out of an incident which occurred with a 13-year-old child.

Defendant's argument on appeal regarding the legal sufficiency of the evidence was unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that the proof as to defendant's conduct was legally sufficient to support the convictions of sexual abuse in the second degree and endangering the welfare of a child. The former charge requires a showing of "sexual contact," which is defined as "any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party" (Penal Law § 130.00 [3]). Sexual gratification may be inferred from the nature of the act committed and the circumstances under which it occurred (see Matter of Kryzstof K., 283 AD2d 431 [2001]; People v Beecher, 225 AD2d 943 [1996]). With respect to the latter charge of endangering the welfare of a child, it is sufficient for the evidence to show that defendant acted in a manner "likely to result in harm to the child, knowing of the [*2]likelihood of such harm coming to the child" (People v Simmons, 92 NY2d 829, 830 [1998]).

Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]). It is well settled that the credibility of witnesses is a question of fact, and the resolution of issues of credibility, as well as the weight to be accorded the evidence presented, is to be decided by the trier of fact, which had the opportunity to see and hear the witnesses
(see People v Romero, 7 NY3d 633 [2006]). The determination of the trier of fact should be accorded great weight on appeal, and should not be disturbed unless clearly unsupported by the record (see People v Garafolo, 44 AD2d 86, 88 [1974]).

Defendant's contention that the cumulative effect of the prosecutor's remarks during summation deprived him of his right to a fair trial is unpreserved for our review since defense counsel made only general objections to the prosecutor's remarks (see People v Tonge, 93 NY2d 838, 839 [1999]; People v Dien, 77 NY2d 885 [1991]) and failed to request curative instructions, after the court sustained the objections, or move for a mistrial (see People v Medina, 53 NY2d 951, 953 [1981]; People v Louisias, 29 AD3d 1017, 1021 [2006]). In any event, the remarks complained of did not shift the burden of proof or deprive defendant of a fair trial warranting reversal of the judgment of conviction in the exercise of our interest of justice jurisdiction (CPL 470.15 [6] [a]; see People v Williams,13 AD3d 660 [2004]).

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: June 20, 2007