           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
34
KA 08-00379
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

MARK D. SANDS, DEFENDANT-APPELLANT.


JOSEPH T. JARZEMBEK, BUFFALO, FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered January 7, 2008. The judgment convicted
defendant, upon a jury verdict, of use of a child in a sexual
performance, promoting an obscene sexual performance by a child,
sexual abuse in the third degree, endangering the welfare of a child,
unlawfully dealing with a child in the first degree and criminal
possession of a weapon in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, use of a child in a sexual
performance (Penal Law § 263.05). County Court properly refused to
suppress the oral and written statements that defendant made to a
police investigator. The record of the suppression hearing supports
the court’s determination that defendant knowingly, voluntarily and
intelligently waived his Miranda rights before he made those
statements (see People v Shaw, 66 AD3d 1417, lv denied 14 NY3d 773).
Defendant failed to preserve for our review his contention that his
statements were elicited after he requested counsel, and we decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see People v Rumrill, 40 AD3d 1273, 1274,
lv denied 9 NY3d 926). “To the extent that defendant preserved for
our review his contention that the conviction is not supported by
legally sufficient evidence, we conclude that his contention lacks
merit” (People v Barnard, 295 AD2d 999, lv denied 98 NY2d 708).
Finally, the sentence is not unduly harsh or severe.



Entered:   February 10, 2011                       Patricia L. Morgan
                                                   Clerk of the Court
