People v. Burke, 139 A.D.3d 1268 (N.Y. App. Div. 3d Dep't 2016). · Go Syfert
People v. Burke, 139 A.D.3d 1268 (N.Y. App. Div. 3d Dep't 2016). Cases Citing This Book View Copy Cite
24 citation events (24 in the last 25 years) across 2 distinct courts.
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At page 1269 [2]) that rendered him subject to the Sex Offender Registration Act (see Correction Law §§ 168-a [2] [d]; 168-d). As his release from prison neared, the Board…11 citing casesopening of page *1269 (no citing court says what it cites this page for)
  • People v. Washburn, 2022 NY Slip Op 03954 (N.Y. App. Div. 3d Dep't 2022).
    Although defendant's criticism that the determination is conclusory is merited, based upon the scant analysis of these arguments, this failing does not preclude meaningful appellate review; in any event, remittal is not required here, as t…
  • People v. Green, 2022 NY Slip Op 00220 (N.Y. App. Div. 3d Dep't 2022).
    Although County Court's short form order contains the "ordered" language required to constitute an appealable paper, the written order fails to set forth the findings of fact and conclusions of law required by Correction Law § 168-n (3) (…
  • People v. Shook, 2021 NY Slip Op 06399 (N.Y. App. Div. 3d Dep't 2021).
    To the extent that defendant challenges County Court's failure to comply with the provisions of Correction Law § 168-n (3) by rendering a written order setting forth the findings of fact and conclusions of law upon which its risk level cla…
  • People v. Conrad, 145 N.Y.S.3d 677 (N.Y. App. Div. 3d Dep't 2021).
    Here, County Court utilized a short form order that alludes to the findings of fact and conclusions of law made on the record in open court, but such findings and conclusions are not sufficiently detailed to permit intelligent review ( see…
  • People v. Brown, 190 A.D.3d 1120 (N.Y. App. Div. 3d Dep't 2021).
    Although County Court's short form order concludes that defendant is a risk level three sex offender and "alludes to the findings of fact and conclusions of law made on the record in open court" ( People v Burke , [*2] 139 AD3d 1268, 1269…
  • People v. Williamson, 181 A.D.3d 1100 (N.Y. App. Div. 3d Dep't 2020).
    Instead, defendant argues only that the court erred in its assessment of points under risk factors 11, 12 and 13, and the court's oral findings with respect to these factors — incorporated by reference into the written order — are clear, s…
  • People v. Secor, 2019 NY Slip Op 2759 (N.Y. App. Div. 3d Dep't 2019).
    Nevertheless, such findings of fact and conclusions of law are adequately set forth in the transcript of the SORA hearing ( see People v Burke , 139 AD3d 1268, 1269 [2016], lv denied 28 NY3d 909 [2016]).
  • People v. Coe, 2018 NY Slip Op 8587 (N.Y. App. Div. 3d Dep't 2018).
    Although the "short form order" utilized by County Court contains the "ordered" language required to constitute an appealable paper, the written order fails to set forth the findings of fact and conclusions of law required by Correction La…
  • People v. Askins, 148 A.D.3d 1598 (N.Y. App. Div. 4th Dep't 2017). 2 cites
    That aggravating factor was not adequately taken into account by the risk assessment instrument (see People v Widom, 143 AD3d 688, 689 [2016]; People v Burke, 139 AD3d 1268, 1269-1270 [2016], lv denied 28 NY3d 909 [2016]).
  • People v. Truelove, 191 A.D.3d 1076 (N.Y. App. Div. 3d Dep't 2021).
    Footnotes Footnote 1: Although Supreme Court did not set forth its findings of fact and conclusions of law in its written order ( see Correction Law § 168-n [3]), remittal is unnecessary as "the court made oral findings and conclusions tha…
Show 1 more citing case
  • People v. Simons, 2018 NY Slip Op 200 (N.Y. App. Div. 3d Dep't 2018).
    While we agree with defendant that the court should have applied a preponderance of the evidence standard to his request, rather than a clear and convincing evidence standard ( see People v Gillotti , 23 NY3d 841, 860-861 [2014]), remittal…
At page 1270 not adequately taken into account by the risk assessment guidelines, is established by clear and convincing evidence” (People v Rowe, 136 AD3d 1125, 1125…6 citing casesopening of page *1270 (no citing court says what it cites this page for)
  • People v. Phillips, 2019 NY Slip Op 8455 (N.Y. App. Div. 3d Dep't 2019).
    Contrary to defendant's claim, the PSI and case summary constitute reliable hearsay and provide clear and convincing evidence supporting defendant's classification as a risk level two sex offender ( see People v Crosley , 161 AD3d at 1462-…
  • People v. Perry, 2019 NY Slip Op 5816 (N.Y. App. Div. 3d Dep't 2019).
    In determining whether an upward departure is warranted, "County Court may consider reliable hearsay evidence such as [*2]the case summary, presentence investigation report and risk assessment instrument, as well as defendant's past miscon…
  • People v. Crosley, 2018 NY Slip Op 3782 (N.Y. App. Div. 3d Dep't 2018).
    However, the case summary and excerpts from the federal presentence report that were considered by County Court indicate that the search of defendant's residence revealed "at least 20 videos of minor females engaged in sexually explicit co…
  • People v. Parisi, 147 A.D.3d 1162 (N.Y. App. Div. 3d Dep't 2017). 2 cites
    The reliable hearsay evidence submitted by the People, including the case summary and PSR, established that defendant was engaged in the commercial production and distribution of child pornography on a website he designed, operated and pro…
  • People v. Wheeler, 144 A.D.3d 1341 (N.Y. App. Div. 3d Dep't 2016).
    In light of the aggravating factors not taken into consideration by the RAI—including the duration and degree of defendant’s child pornography habit and his obsession with young girls—we find County Court’s determination that an upward dep…
  • People v. McCabe, 142 A.D.3d 1379 (N.Y. App. Div. 4th Dep't 2016). 2 cites
    Although defendant is correct that the risk assessment guidelines “assess 20 points if the victim was 11 through 16 years old and 30 points if the victim was 10 years old or younger” (Guidelines at 11), in this case there is clear and conv…
Retrieving the full opinion text from the archive…
The People of the State of New York, Respondent,
v.
Kelly J. Burke, Appellant
518832.
Appellate Division of the Supreme Court of the State of New York.
May 19, 2016.
139 A.D.3d 1268
Garry, Lahtinen, McCarthy, Rose, Aarons.
Cited by 22 opinions  |  Published
Garry, J.

Appeal from an order of the County Court of Albany County (Lynch, J.), entered March 4, 2014, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

In 2010, defendant pleaded guilty in federal court to one count of receipt of child pornography {see 18 USC § 2252A [a][*1269] [2]) that rendered him subject to the Sex Offender Registration Act (see Correction Law §§ 168-a [2] [d]; 168-d). As his release from prison neared, the Board of Examiners of Sex Offenders completed a risk assessment instrument (hereinafter RAI) that presumptively classified defendant as a risk level one sex offender. Based upon defendant’s long-term use and possession of child pornography and expressed interest in adolescent females, the Board recommended an upward departure to a risk level two. The People completed a separate RAI, assessing defendant an additional 55 points — which included an additional 30 points for the number of victims, 20 points for establishing a relationship with the victim and 5 points for defendant’s prior nonviolent criminal history — and presumptively classified defendant as a risk level two sex offender. Based upon the violent acts depicted in the pornography, as well as the extent and duration of defendant’s habit, the People recommended an upward departure to risk level three. Following a hearing, County Court agreed with the RAI submitted by the People as to all but one factor, presumptively assessed defendant as a risk level two sex offender, granted the People’s request for an upward departure and classified defendant as a risk level three sex offender. Defendant now appeals, arguing that an upward departure was not warranted.

As an initial matter, County Court’s order fails to satisfy the requirement that County Court issue a written order setting forth its findings of fact and conclusions of law (see Correction Law § 168-n [3]). “The court’s single-page form order merely concluded that defendant be assigned a final risk level of three and alludes to the findings of fact and conclusions of law made on the record in open court” (People v Zayas, 57 AD3d 1179, 1179-1180 [2008] [internal quotation marks omitted]; see People v Hemmes, 110 AD3d 1387, 1388 [2013]). Despite this error, remittal is unnecessary where the court makes “oral findings and conclusions that are clear, supported by the record and sufficiently detailed to permit intelligent review” (People v Labrake, 121 AD3d 1134, 1135 [2014] [internal quotation marks and citations omitted]), “or the record is sufficient for this Court to make its own factual findings and conclusions” (People v Hemmes, 110 AD3d at 1388; see People v Young, 108 AD3d 1232, 1233 [2013], lv denied 22 NY3d 853 [2013]; People v Urbanski, 74 AD3d 1882, 1883 [2010], lv denied 15 NY3d 707 [2010]). Here, the record is sufficient to permit us to review the grounds upon which that upward departure was based.

Turning to the merits, an “upward departure from the presumptive risk level is justified when an aggravating factor,[*1270] not adequately taken into account by the risk assessment guidelines, is established by clear and convincing evidence” (People v Rowe, 136 AD3d 1125, 1125 [2016] [internal quotation marks, brackets and citations omitted]; accord People v Auleta, 135 AD3d 1251, 1252 [2016], lv denied 27 NY3d 903 [2016]). “In making this determination, County Court ‘may consider reliable hearsay evidence such as the case summary, presentence investigation report and risk assessment instrument’ ” (People v Rowe, 136 AD3d at 1126, quoting People v Adam, 126 AD3d 1169, 1170 [2015], lv denied 25 NY3d 911 [2015]), “as well as defendant’s past misconduct” (People v Muirhead, 110 AD3d 1386, 1387 [2013], lv denied 23 NY3d 906 [2014]). The People submitted reliable hearsay, including the case summary and federal presentence investigation report (see Correction Law § 168-n [3]; People v Mingo, 12 NY3d 563, 572-573 [2009]; People v Gauthier, 100 AD3d 1223, 1224-1225 [2012]), which established that defendant had been a longstanding, heavy consumer of child pornography and that some of the material that defendant possessed depicted forms of violence. Thus, as the record contains clear and convincing evidence of aggravating factors — specifically, the duration and nature of the child pornography used by defendant — not otherwise taken into account by the risk assessment guidelines, we find no abuse of discretion in County Court’s determination that defendant is a high-risk sex offender and that an upward departure was therefore warranted (see People v Adam, 126 AD3d at 1170-1171; People v Labrake, 121 AD3d at 1135-1136).

Lahtinen, J.P., McCarthy, Rose and Aarons, JJ., concur.

Ordered that the order is affirmed, without costs.