Dustin Post is pictured during a court appearance in 2023.

A northern Chautauqua County resident’s jury conviction on six counts of predatory sexual assault has been upheld by the Fourth Department Appellate Division Court of Appeals.

In a ruling announced late Friday, the justices unanimously affirmed the jury verdict reached on April 10, 2023, that found Dustin Post guilty of six counts of sexual misconduct against a child after a trial which took six days. Five children testified in court that they were sexually abused by Post when they were ages 3 to 12 years old. County Court Judge David Foley sentenced Post to 125 years to life in prison with the sentence to begin after a previous federal sentencing of 50 years for child pornography is completed.

Nathaniel Barone, county public defender, represented Post in the appeal while District Attorney Jason Schmidt argued the case on the county’s behalf. Barone contended Foley erred in refusing to suppress evidence seized after warrantless searches of Post’s electronic and digital devices.

“Contrary to defendant’s contention, the record establishes that (Post) voluntarily provided investigators with written consent to search those devices,” Justice Gerald Whalen, presiding justice, wrote in the court’s opinion.

Barone also argued that Foley should have suppressed statements Post made to investigators when he met with police outside of his home before he was reminded of his right to remain silent and that statements made after Post was made aware of his Miranda rights should have been ruled inadmissible because they were the fruit of an unlawful custodial interrogation. Whalen and the rest of the Fourth Department justices disagreed with Barone.

“We reject that contention,” Whalen wrote. “The court properly concluded that defendant was not in custody, in as much as the record of the suppression hearing established that ‘a reasonable person, innocent of any crime, would not have believed that (they were) in custody at that time, given the circumstances of the initial (interview).”

Barone also argued that the court should have required redaction of recordings from Post’s second interview with police that reference having made, possessed and exchanged child pornography. Foley ruled the statements admissible in what is known as a Molineaux hearing, a pre-trial or mid-trial proceeding in New York State courts where a judge determines if prosecutors can present evidence of a defendant’s uncharged or past crimes to the jury. It originates from the landmark precedent People v. Molineux. In New York, evidence of a defendant’s prior bad acts or uncharged crimes is generally inadmissible if used simply to show the defendant has a “propensity” or bad character to commit crimes. Under specific exceptions, this evidence can be allowed if it serves a legitimate, non-propensity purpose and its probative value outweighs its prejudice. The Fourth Department justices ruled Foley’s ruling met the accepted exceptions.

The court ruled that the references to Post’s federal charges were permitted because they were interwoven with the charged crimes in Chautauqua County Court, provided necessary background and “completed the narrative” of the events charged in the Chautauqua County indictment because the evidence showed Post recorded his sexual activity with certain victims and showed child pornography to at least one victim in an effort to coax the victim into performing the same act that was pictured.

“We further conclude that any error with respect to the admission of Molineaux evidence is harmless inasmuch as ‘the evidence of defendant’s guilt is overwhelming and there is no significant probability that the jury would have acquitted defendant if the allegedly improper Molineaux evidence had been excluded.'”

The final argument made by Barone was that Foley committed a reversible error by admitting into evidence a recording of the second interview between Post and police officers that included a lengthy polygraph examination that Post voluntarily submitted to undergoing and during which he made inculpatory statements – of a declaration, admission or confession implicating Post in a wrongful act or that suggested Post was legally responsible for a crime. The statements are essentially self-incriminating and are heavily used by prosecutors to establish guilt statements that confirmed his guilt. Barone argued the fact that Post underwent a polygraph test was unduly prejudicial.

“We reject that contention,” Whalen wrote. “The court properly precluded (Schmidt) from introducing evidence concerning the results of the polygraph examination and the court further provided a limiting instruction to the jury that evidence regarding defendant’s performance on the polygraph examination was inadmissible and that the jury was prohibited from speculating about any such evidence. Further, we conclude that any error in the admission of the recording of the second interview was harmless under the circumstances of the case.”