| People v Eriksen |
| 2016 NY Slip Op 08129 [145 AD3d 1110] |
| December 1, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vKaj-Erik Eriksen, Also Known as Richard Lewis, Appellant. |
Cynthia Feathers, Glens Falls, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered May 8, 2015, upon a verdict convicting defendant of the crimesof predatory sexual assault against a child, course of sexual conduct against a child in thefirst degree, criminal sexual act in the second degree (two counts) and criminal sexual actin the third degree.
Defendant was charged in a five-count superceding indictment with predatory sexualassault against a child, course of sexual conduct against a child in the first degree, twocounts of criminal sexual act in the second degree and criminal sexual act in the thirddegree. These charges stemmed from allegations that included that defendant, onoccasions between the years of 2004 and 2012, touched the penises of three victims withhis mouth and/or hands. The charges pertained to acts that occurred against the victims atvarying ages, including acts occurring at times when the specified victim was less than13 years old, less than 15 years old and less than 17 years old. Prior to trial, defendantmoved to suppress statements that he had made during a police interview. After asuppression hearing, County Court denied defendant's motion. Thereafter, defendantproceeded to a jury trial upon the completion of which he was convicted as charged.
County Court sentenced defendant to 25 years to life in prison for the predatorysexual [*2]assault against a child conviction,[FN1] 25 years to life in prisonfollowed by 20 years of postrelease supervision for the course of sexual conduct againsta child in the first degree conviction, seven years in prison followed by 10 years ofpostrelease supervision for each of the criminal sexual act in the second degreeconvictions and four years in prison followed by 10 years of postrelease supervision forthe criminal sexual act in the third degree conviction, with all sentences to runconsecutively. Defendant now appeals, and we affirm.
County Court properly denied defendant's motion to suppress his statements to lawenforcement as the proof established that defendant was not in custody prior to hisreceipt of Miranda warnings. Miranda safeguards are required if a suspectis subject to custodial interrogation by law enforcement officials (see People v Paulman, 5 NY3d122, 129 [2005]). The custody inquiry "is informed by many factors, including thelocation, length and atmosphere of the questioning, whether police significantlyrestricted defendant's freedom of action, the degree of defendant's cooperation, andwhether the questioning was accusatory or investigatory" (People v Chaplin, 134 AD3d1148, 1150 [2015] [internal quotation marks and citations omitted], lvdenied 27 NY3d 1067 [2016]). In contrast, proof regarding the unexpressedsubjective beliefs of either the suspect or the police officer are irrelevant (seeStansbury v California, 511 US 318, 323 [1994]; People v Reardon, 124 AD3d 681, 683 [2015], lvdenied 26 NY3d 934 [2015]). Considering the relevant factors, the ultimate inquiryfor "custodial status is whether a reasonable person innocent of any wrongdoing wouldhave believed that he or she was not free to leave" (People v Paulman, 5 NY3d at129).
The facts associated with defendant's police interview are largely uncontroverted.Two police detectives approached defendant when he arrived at the home of the motherof one of the victims. Defendant agreed to accompany the detectives to policeheadquarters—when asked to go there to discuss a policeinvestigation—and he drove himself to the headquarters. Defendant was nothandcuffed at any point or subject to any similar physical restraints, and he was nevertold he was not free to leave. A police investigator began an interview with defendant inan interview room. Eventually, defendant affirmatively stated that he felt that he was notfree to leave, prompting the issuance of Miranda warnings prior to defendantcontinuing with the interview. Considering the evidence introduced at the suppressionhearing, we find that a reasonable person innocent of wrongdoing placed in defendant'sposition would have felt free to leave prior to the issuance of the Mirandawarnings (see People vHenry, 114 AD3d 1025, 1027 [2014], lv dismissed 22 NY3d 1199[2014]; People v McCoy,89 AD3d 1218, 1220 [2011], lv denied 18 NY3d 960 [2012]). Accordingly,County Court properly denied the suppression motion.
Turning to defendant's sentence, we disagree with defendant that he was sentenced toan aggregate prison term of 43 years to life in prison. Defendant reaches his conclusionby suggesting that County Court failed to impose a minimum indeterminate sentence ofimprisonment for defendant's predatory sexual assault against a child conviction, whichwould be an illegal sentence.[FN2] The record as a whole, however,establishes that County Court imposed a prison sentence of 25 years to life for theconviction. In imposing sentence for the predatory [*3]sexual assault against a child conviction, County Courtinitially stated that defendant would "spend the remainder of [his] natural life in prison asthe maximum sentence." Thereafter, County Court imposed a consecutive prisonsentence of 25 years to life for the course of sexual conduct against a child in the firstdegree conviction. In explaining the consecutive nature of that second sentence, the courtelaborated that "after 25 years you'll start your second 25-year sentence." Although thecourt ought to have initially stated the minimum indeterminate sentence that it wished toimpose for the predatory sexual assault against a child conviction, the aforementionedreference to a previously imposed 25-year sentence of imprisonment adequatelyestablishes that the court imposed a sentence of 25 years to life in prison for thatconviction. Accordingly, the court sentenced defendant to an aggregate prison sentenceof 68 years to life.[FN3]
Finally, we disagree with defendant that the sentence imposed was either harsh orexcessive. Defendant's presentence investigation report establishes that defendant's adultlife has been marked by his repeated sexual abuse of juvenile boys. Moreover,defendant's previous criminal convictions and imprisonment that were related to previousinstances of child sexual abuse did not deter him from committing the extensive, repeatedand abhorrent sexual abuse related to the instant convictions. Accordingly, we find noabuse of discretion or extraordinary circumstances that would warrant a reduction in hissentence (see People vNelson, 68 AD3d 1252, 1256 [2009]; People v Dunton, 30 AD3d 828, 830 [2006], lvdenied 7 NY3d 847 [2006]).
Peters, P.J., Lynch, Rose and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The imposition of thissentence is further discussed herein.
Footnote 2:The legally permissibleminimum period of imprisonment for that conviction was 10 to 25 years (seePenal Law §§ 130.96, 70.00 [3] [a] [ii]; see e.g. People v Reynolds, 81AD3d 1166, 1166 [2011], lv denied 16 NY3d 898 [2011]).
Footnote 3:By operation of law andpursuant to Penal Law § 70.30 (1) (e) (vi), the Department of Correctionsand Community Supervision will recalculate the sentence to an aggregate prison term of50 years (see People vNelson, 68 AD3d 1252, 1256 [2009]; cf. People v Jabaut, 111 AD3d 1140, 1147 [2013], lvdenied 22 NY3d 1139 [2014]).