| People v Shultis |
| 2009 NY Slip Op 02687 [61 AD3d 1116] |
| April 9, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brian A.Shultis, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Columbia County (Czajka, J.),rendered September 19, 2007, upon a verdict convicting defendant of the crimes of criminalsexual act in the first degree (five counts), sexual abuse in the first degree (two counts),possessing a sexual performance by a child (16 counts), use of a child in a sexual performance(three counts) and endangering the welfare of a child.
Defendant was charged with multiple crimes after an investigation revealed that he hadengaged in a series of sexual acts with his girlfriend's granddaughter (born in 1994) between2002 and 2006. Following a hearing, County Court denied defendant's motion to suppressphotographs taken from his home and his subsequent statements to police. Thereafter, defendantwas convicted of all charges and sentenced to a prison term totaling 125 years, reduced byoperation of law to 50 years (see Penal Law § 70.30 [1] [e] [vii] [A]), followed bya period of postrelease supervision.
Initially, we are unpersuaded by defendant's contention that Judge Czajka's failure to recusehimself—based upon his alleged comments at a prior Family Court proceedingdemonstrating bias against defendant—was an abuse of discretion and violated defendant'sright to due process. Inasmuch as this basis for recusal does not involve a mandatory statutory[*2]disqualification pursuant to Judiciary Law § 14, thetrial judge was the sole arbiter regarding recusal (see People v Moreno 70 NY2d 403,405 [1987]; People v Wallis, 24AD3d 1029, 1031 [2005], lv denied 6 NY3d 854 [2006]). We find no support in thisrecord to indicate that he abused his discretion. Furthermore, in denying that he made anyprejudicial statements regarding defendant, the judge was not testifying as a witness againstdefendant but rather was "laboring to elucidate what originally took place before [him]"(People v Alomar, 93 NY2d 239, 247 [1999]).
Next, under the circumstances herein, we find no error in County Court denying defendant'smotion to suppress the photographs obtained from defendant's home. Senior InvestigatorWilliam Foster testified that, after being informed that the warrant to search defendant's homehad been signed and was en route, Foster and Investigator Mark Dunspaugh, along with twoother officers, arrived at defendant's home. Foster identified himself to defendant as aninvestigator and asked defendant if they could speak away from the house. Once outside, Fosterinformed defendant that they were there investigating the sex abuse of a young girl. He furtherindicated that they were aware that inappropriate photographs of the girl were in defendant'shome and had a warrant to search for those photographs. Defendant, who never asked to see thewarrant, then motioned for Foster to follow, saying "Come on . . . I'll show youwhat you're looking for." Foster and Dunspaugh followed defendant inside the home to the livingroom where defendant handed Foster a folder containing photographs of the young girl "invarious sexual acts and displays." The three men then exited the home. Shortly thereafter, thesearch warrant arrived and a search of the home was commenced.
Defendant's contention that the photographs were obtained through an illegal search andseizure or by a search conducted pursuant to coerced consent is misplaced. The record clearlyestablishes that, after Foster accurately informed defendant that a search of his home had beenauthorized, defendant voluntarily produced the photographs before any search of the premiseswas undertaken. In other words, the photographs did not come into the investigators' possessionas the result of a search; rather, defendant voluntarily and preemptively relinquished them. Giventhat conclusion, defendant's challenge to the voluntariness of his statements to the police as thefruits of an unlawful search is also without merit.
Although defendant sets forth various factors in support of his contention that the sentenceimposed is harsh and excessive, they do not mitigate the heinous nature of his crimes perpetratedon an innocent young girl over a prolonged period of time nor his inability to accept fullresponsibility for his conduct. Accordingly, we find no abuse of discretion in County Courtimposing the sentence nor do we discern any extraordinary circumstances warranting a reductionof the sentence in the interest of justice (see People v Masters, 36 AD3d 959, 960-961 [2007], lvdenied 8 NY3d 925 [2007]). Furthermore, we find the imposition of the $5,000 fine to be anappropriate exercise of the court's discretion (see Penal Law § 80.00 [1]; seealso People v Oliver, 276 AD2d 930, 931 [2000]).
We do, however, agree that the scope of the order of protection directing that he "avoid allcontact direct or indirect with all individuals under the age of 18" was overly broad inasmuch asit extends to individuals unrelated to the criminal action (see CPL 530.13 [4]).
Peters, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment is modified,on the law, by reversing so much thereof as entered an order of protection in favor of "allindividuals under the age of 18"; said order vacated and matter remitted to the County Court ofColumbia County for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.