         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
244
KA 08-01807
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

DARNELL HOWARD, DEFENDANT-APPELLANT.


DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered April 10, 2008. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree,
criminal mischief in the fourth degree and resisting arrest.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, assault in the second degree (Penal Law §
120.05 [former (3)]) and resisting arrest (§ 205.30), defendant
contends that County Court erred in instructing the jury with respect
to Penal Law § 35.27, concerning the prohibited use of physical force
to resist an arrest when the arrest is being made by a person who
would reasonably appear to be a police officer or a peace officer.
Defendant failed to preserve that contention for our review (see
People v Whitfield, 72 AD3d 1610, lv denied 15 NY3d 811; People v
Bermudez, 38 AD3d 1244, lv denied 8 NY3d 981), and we decline to
exercise our power to review it as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). Contrary to the further
contention of defendant, the court did not abuse its discretion in
denying his request for youthful offender status, and we decline
defendant’s request that we exercise our interest of justice
jurisdiction to afford him such status (see People v Jock, 68 AD3d
1816, lv denied 14 NY3d 801).

     Defendant’s additional contention that the court penalized him
for exercising his right to a jury trial by imposing a sentence
greater than that offered during plea negotiations is not preserved
for our review because he did not raise that contention at the time of
sentencing (see People v Dorn, 71 AD3d 1523; People v Tannis, 36 AD3d
635, lv denied 8 NY3d 927), and in any event that contention lacks
merit (see Dorn, 71 AD3d at 1524). Defendant also failed to preserve
                                 -2-                           244
                                                         KA 08-01807

for our review his contention that the court erred in considering an
uncharged crime in sentencing him (see People v Leeson, 299 AD2d 919,
lv denied 99 NY2d 560; see also People v Washington, 291 AD2d 780,
781, lv denied 98 NY2d 682), and we decline to exercise our power to
review it as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]). Finally, the sentence is not unduly harsh
or severe.




Entered:   March 25, 2011                      Patricia L. Morgan
                                               Clerk of the Court
