                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 1, 2016                   108297
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
KAJ-ERIK ERIKSEN, Also Known
   as RICHARD LEWIS,
                    Appellant.
________________________________


Calendar Date:   October 12, 2016

Before:   Peters, P.J., McCarthy, Lynch, Rose and Mulvey, JJ.

                             __________


     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 crimes of predatory sexual assault against a
child, course of sexual conduct against a child in the first
degree, criminal sexual act in the second degree (two counts) and
criminal sexual act in the third degree.

      Defendant was charged in a five-count superceding
indictment with predatory sexual assault against a child, course
of sexual conduct against a child in the first degree, two counts
of criminal sexual act in the second degree and criminal sexual
act in the third degree. These charges stemmed from allegations
that included that defendant, on occasions between the years of
                                 -2-                108297

2004 and 2012, touched the penises of three victims with his
mouth and/or hands. The charges pertained to acts that occurred
against the victims at varying ages, including acts occurring at
times when the specified victim was less than 13 years old, less
than 15 years old and less than 17 years old. Prior to trial,
defendant moved to suppress statements that he had made during a
police interview. After a suppression hearing, County Court
denied defendant's motion. Thereafter, defendant proceeded 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 predatory sexual assault against a child
conviction,1 25 years to life in prison followed by 20 years of
postrelease supervision for the course of sexual conduct against
a child in the first degree conviction, seven years in prison
followed by 10 years of postrelease supervision for each of the
criminal sexual act in the second degree convictions and four
years in prison followed by 10 years of postrelease supervision
for the criminal sexual act in the third degree conviction, with
all sentences to run consecutively. Defendant now appeals, and
we affirm.

      County Court properly denied defendant's motion to suppress
his statements to law enforcement as the proof established that
defendant was not in custody prior to his receipt of Miranda
warnings. Miranda safeguards are required if a suspect is
subject to custodial interrogation by law enforcement officials
(see People v Paulman, 5 NY3d 122, 129 [2005]). The custody
inquiry "is informed by many factors, including the location,
length and atmosphere of the questioning, whether police
significantly restricted defendant's freedom of action, the
degree of defendant's cooperation, and whether the questioning
was accusatory or investigatory" (People v Chaplin, 134 AD3d
1148, 1150 [2015] [internal quotation marks and citations
omitted], lv denied 27 NY3d 1067 [2016]). In contrast, proof
regarding the unexpressed subjective beliefs of either the


    1
          The imposition of this sentence is further discussed
herein.
                              -3-                108297

suspect or the police officer are irrelevant (see Stansbury v
California, 511 US 318, 323 [1994]; People v Reardon, 124 AD3d
681, 683 [2015], lv denied 26 NY3d 934 [2015]). Considering the
relevant factors, the ultimate inquiry for "custodial status is
whether a reasonable person innocent of any wrongdoing would have
believed that he or she was not free to leave" (People v Paulman,
5 NY3d at 129).

      The facts associated with defendant's police interview are
largely uncontroverted. Two police detectives approached
defendant when he arrived at the home of the mother of one of the
victims. Defendant agreed to accompany the detectives to police
headquarters – when asked to go there to discuss a police
investigation – and he drove himself to the headquarters.
Defendant was not handcuffed at any point or subject to any
similar physical restraints, and he was never told he was not
free to leave. A police investigator began an interview with
defendant in an interview room. Eventually, defendant
affirmatively stated that he felt that he was not free to leave,
prompting the issuance of Miranda warnings prior to defendant
continuing with the interview. Considering the evidence
introduced at the suppression hearing, we find that a reasonable
person innocent of wrongdoing placed in defendant's position
would have felt free to leave prior to the issuance of the
Miranda warnings (see People v Henry, 114 AD3d 1025, 1027 [2014],
lv dismissed 22 NY3d 1199 [2014]; People v McCoy, 89 AD3d 1218,
1220 [2011], lvs denied 18 NY3d 959, 960 [2012]). Accordingly,
County Court properly denied the suppression motion.

      Turning to defendant's sentence, we disagree with defendant
that he was sentenced to an aggregate prison term of 43 years to
life in prison. Defendant reaches his conclusion by suggesting
that County Court failed to impose a minimum indeterminate
sentence of imprisonment for defendant's predatory sexual assault
against a child conviction, which would be an illegal sentence.2


    2
        The legally permissible minimum period of imprisonment
for that conviction was 10 to 25 years (see Penal Law §§ 130.96,
70.00 [3] [a] [ii]; see e.g. People v Reynolds, 81 AD3d 1166,
1166 [2011], lv denied 16 NY3d 898 [2011]).
                              -4-                108297

The record as a whole, however, establishes that County Court
imposed a prison sentence of 25 years to life for the conviction.
In imposing sentence for the predatory sexual assault against a
child conviction, County Court initially stated that defendant
would "spend the remainder of [his] natural life in prison as the
maximum sentence." Thereafter, County Court imposed a
consecutive prison sentence of 25 years to life for the course of
sexual conduct against a child in the first degree conviction.
In explaining the consecutive nature of that second sentence, the
court elaborated that "after 25 years you'll start your second
25-year sentence." Although the court ought to have initially
stated the minimum indeterminate sentence that it wished to
impose for the predatory sexual assault against a child
conviction, the aforementioned reference to a previously imposed
25-year sentence of imprisonment adequately establishes that the
court imposed a sentence of 25 years to life in prison for that
conviction. Accordingly, the court sentenced defendant to an
aggregate prison sentence of 68 years to life.3

      Finally, we disagree with defendant that the sentence
imposed was either harsh or excessive. Defendant's presentence
investigation report establishes that defendant's adult life has
been marked by his repeated sexual abuse of juvenile boys.
Moreover, defendant's previous criminal convictions and
imprisonment that were related to previous instances of child
sexual abuse did not deter him from committing the extensive,
repeated and abhorrent sexual abuse related to the instant
convictions. Accordingly, we find no abuse of discretion or
extraordinary circumstances that would warrant a reduction in his
sentence (see People v Nelson, 68 AD3d 1252, 1256 [2009]; People
v Dunton, 30 AD3d 828, 830 [2006], lv denied 7 NY3d 874 [2006]).




    3
        By operation of law and pursuant to Penal Law
§ 70.30 (1) (e) (vi), the Department of Corrections and Community
Supervision will recalculate the sentence to an aggregate prison
term of 50 years (see People v Nelson, 68 AD3d 1252, 1256 [2009];
cf. People v Jabaut, 111 AD3d 1140, 1147 [2013], lv denied 22
NY3d 1139 [2014]).
                        -5-                  108297

Peters, P.J., Lynch, Rose and Mulvey, JJ., concur.



ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
