THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MARK SANDS DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

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 A.D.2d 999, lv denied 98 N.Y.2d 708).   Finally, the sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court