June 1, 2005
Section: First Edition Cos
Edition: Fulton Montgomery Schoharie; First
Page: B-02

County judge rules statement was voluntary Man allegedly photographed naked clients

JIM McGUIRE

Gazette Reporter

JOHNSTOWN -- Following a three-hour hearing in Fulton County Court Tuesday, Judge Richard C. Giardino ruled that Mark A. Stearns gave a voluntary statement to state police concerning surreptitious photos he is accused of taking of naked clients of the Lexington Center. Stearns, 50, of Iris Lane, Fultonville, is scheduled to stand trial June 13 on charges of felony unlawful surveillance and misdemeanor endangering. The evidence hearing was conducted Tuesday to determine whether the statement Stearns provided state police Oct. 1 was voluntarily given and therefore admissible at trial. Giardino reserved decision on a second issue raised by Albany defense attorney Randall E. Kehoe, who challenged the validity of the search warrant that allowed state police to examine the photo files of a laptop computer owned by Stearns but taken from his home by his estranged wife. Fulton County District Attorney Louise K. Sira has said Stearns' wife discovered the photo file, recognized two male Lexington Center clients depicted, and turned the computer over to state police. Stearns, an aide at Lexington since 1994, was fired. The two sides are proceeding to trial after Stearns rejected a plea bargain in May that would have required him to serve six months in jail on a guilty plea to the surveillance charge. Kehoe, who said in May that he believes the prosecution's evidence is weak, predicted an acquittal, arguing Tuesday that the testimony of two state police investigators demonstrated Stearns' statement was not given voluntarily. While Investigators Peter J. Kozel and Joseph Donahue testified that Stearns drove to the Fonda station for the interview, was not under arrest and was always free to leave, Kehoe said it is clear from the testimony that Stearns believed he was in custody when he provided the statement. When the interview concluded, he was issued an appearance ticket charging him with two misdemeanor counts of endangering. The felony was contained in a later indictment. Kozel testified that Stearns volunteered the information that he took the photos using a Casio wristwatch camera he purchased over the Internet. After his interview in Fonda, Kozel said a state trooper followed Stearns home and waited while Stearns turned over the watch/camera. Though the statement was not read into the hearing record Tuesday, Sira asked Giardino if she could release it to the press since it was entered into evidence. Citing a recent court decision, Giardino blocked release, contending it is too close to trial and could prejudice potential jurors. During Kozel's testimony, however, part of the statement was disclosed. Stearns' purportedly told investigators he was fearful when his wife left and took almost everything, including the computer, that "she would reveal I had a lot of gay pornography and a lot of my secrets." If convicted on the felony Stearns could face a maximum penalty of 1 1/3 to 4 years in prison.

Reach Gazette reporter Jim McGuire at 725-8412 or jmcguire@dailygazette.net.

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