People v. Sands , 916 N.Y.S.2d 550 ( 2011 )

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 [2009], lv denied 14 NY3d 773 [2010]). 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 [2007], lv denied 9 NY3d 926 [2007]). “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 [2002], lv denied 98 NY2d 708 [2002]). Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith, Lindley, Green and Martoche, JJ.