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