People v. Hemmes, 110 A.D.3d 1387 (N.Y. App. Div. 2013). · Go Syfert
People v. Hemmes, 110 A.D.3d 1387 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
16 citation events (16 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Brown (nyappdiv, 2021-01-14)
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Brown
N.Y. App. Div. · 2021 · confidence medium
Notwithstanding, remittal is not necessary as the record is otherwise sufficiently developed for us to make our own factual findings and conclusions ( see People v Coe , 167 AD3d 1175 , 1176 [2018]; People v Burke , 139 AD3d at 1269 ; People v Hemmes , 110 AD3d 1387, 1388 [2013]).
discussed Cited as authority (rule) People v. Hinson
N.Y. App. Div. · 2019 · confidence medium
Footnotes Footnote 1: Although Supreme Court's written order did not set forth its findings of fact and conclusions of law supporting its determination ( see Correction Law § 168-n [3]), remittal is unnecessary as the record before us is sufficient to enable us to make our own findings and conclusions of law ( see People v Hemmes , 110 AD3d 1387, 1388 [2013]; People v Urbanski , 74 AD3d 1882, 1883 [2010], lv denied 15 NY3d 707 [2010]).
discussed Cited as authority (rule) People v. Coe
N.Y. App. Div. · 2018 · confidence medium
The hearing transcript is similarly deficient as it does not contain clear and detailed oral findings to support County Court's risk level classification ( see People v Hemmes , 110 AD3d 1387, 1388 [2013]).
discussed Cited as authority (rule) People v. Headwell (2×)
N.Y. App. Div. · 2017 · confidence medium
Footnotes Footnote 1: Although defendant's online interactions were with an undercover police officer, defendant thought that he was communicating with his 15-year-old neighbor and the officer can constitute a victim pursuant to the Sex Offender Registration Act ( see People v Hemmes , 110 AD3d 1387, 1388 [2013]; People v Agnew , 68 AD3d 526 , 526 [2009], lv denied 14 NY3d 705 [2010]).
discussed Cited as authority (rule) People v. Wise
N.Y. App. Div. · 2015 · confidence medium
Contrary to the defendant’s contention, the assessment of 20 points against him under risk factor 7 for his establishment of a relationship with an undercover police officer posing as a 13-year-old girl for the purpose of victimizing the fictitious child was supported by clear and convincing evidence (see People v Hemmes, 110 AD3d 1387, 1388 [2013]; People v DeDona, 102 AD3d 58, 64 [2012]).
discussed Cited as authority (rule) People v. Labrake
N.Y. App. Div. · 2014 · confidence medium
Remittal is not required, however, as County Court made “oral findings and conclusions that ‘are clear, supported by the record and sufficiently detailed to permit intelligent review’ ” (People v Hemmes, 110 AD3d 1387, 1388 [2013], quoting People v Carter, 106 AD3d 1202, 1203 [2013]; see Correction Law § 168-n [3]).
discussed Cited as authority (rule) People v. Labrake
N.Y. App. Div. · 2014 · confidence medium
Remittal is not required, however, as County Court made “oral findings and conclusions that ‘are clear, supported by the record and sufficiently detailed to permit intelligent review’ ” (People v Hemmes, 110 AD3d 1387, 1388 [2013], quoting People v Carter, 106 AD3d 1202, 1203 [2013]; see Correction Law § 168-n [3]).
discussed Cited as authority (rule) PeoplevLabrake
N.Y. App. Div. · 2014 · confidence medium
Remittal is not required, however, as County Court made "oral findings and conclusions that 'are clear, supported by the record and sufficiently detailed to permit intelligent review'" (People v Hemmes, 110 AD3d 1387, 1388 [2013], quoting People v Carter, 106 AD3d 1202, 1203 [2013]; see Correction Law § 168-n [3]).
discussed Cited as authority (rule) People v. Birch
N.Y. App. Div. · 2014 · confidence medium
Although Supreme Court did not issue the required written order setting forth its findings of fact and conclusions of law (see Correction Law § 168-n [3]), remittal is not required as the record is sufficiently developed to permit this Court to make the necessary findings (see People v Hemmes, 110 AD3d 1387, 1388 [2013]; People v Rodriguez, 78 AD3d 1140 , 1141 [2010], lv denied 16 NY3d 707 [2011]).
discussed Cited as authority (rule) People v. Birch
N.Y. App. Div. · 2014 · confidence medium
Although Supreme Court did not issue the required written order setting forth its findings of fact and conclusions of law (see Correction Law § 168-n [3]), remittal is not required as the record is sufficiently developed to permit this Court to make the necessary findings (see People v Hemmes, 110 AD3d 1387, 1388 [2013]; People v Rodriguez, 78 AD3d 1140 , 1141 [2010], lv denied 16 NY3d 707 [2011]).
discussed Cited "see" People v. Lavelle
N.Y. App. Div. · 2019 · signal: see · confidence high
Nevertheless, inasmuch as the court "'made oral findings and conclusions that are clear, supported by the record and sufficiently detailed to permit [*2]intelligent review'" ( People v Headwell , 156 AD3d 1263, 1264 [2017], lv denied 31 NY3d 902 [2018], quoting People v Labrake , 121 AD3d 1134, 1135 [2014] [internal quotation marks and citations omitted]; see People v Hemmes , 110 AD3d 1387, 1388 [2013]), remittal is unnecessary.
discussed Cited "see" People v. Burke
N.Y. App. Div. · 2016 · signal: see · confidence high
“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]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Joseph H. Hemmes
Appellate Division of the Supreme Court of the State of New York.
Oct 31, 2013.
110 A.D.3d 1387
McCarthy.
Cited by 14 opinions  |  Published
McCarthy, J.

In satisfaction of a 17-count indictment, defendant pleaded guilty to criminal sexual act in the second degree, rape in the second degree and disseminating indecent material to minors in the first degree. In anticipation of his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument, pursuant to the Sex Offender Registration Act (see Correction Law art 6-C), that presumptively classified defendant as a risk level II sex offender. Following a hearing, County Court adopted the Board’s recommendation and classified defendant as a risk level II sex offender. Defendant appeals.

County Court assigned defendant 95 points, placing him within risk level II (75 to 105 points). Defendant only challenges the assignment of points in two categories — risk factor 3, addressing the number of victims, and risk factor 7, addressing[*1388] his relationship to the victim or victims. Unfortunately, County Court failed to comply with the statutory mandate to issue a written order setting forth its findings of fact and conclusions of law to support its determination (see Correction Law § 168-n [3]; People v Crowley, 64 AD3d 918, 919 [2009]). 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 Carter, 106 AD3d 1202, 1203 [2013]), or the record is sufficient for this Court to make its own factual findings and conclusions (see People v Urbanski, 74 AD3d 1882, 1883 [2010], lv denied 15 NY3d 707 [2010]; People v Guitard, 57 AD3d 751, 751 [2008], lv denied 12 NY3d 704 [2009]).

County Court’s oral findings were not clear or clearly supported by the record, but the record is sufficient for this Court to make enough of its own findings to determine the proper classification. County Court assigned 30 points under risk factor 3 for defendant having three or more victims, without identifying which particular individuals it considered as victims. The court also assigned 20 points under risk factor 7, indicating that defendant was a stranger or established a relationship for the purpose of victimizing, but did not explain which of those two labels was applicable or to which victim or victims the label applied. During its oral discussion, the court intertwined statements about different factors and stated that it relied on the case summary and presentence investigation report, but also found defendant’s testimony — which was in some ways inconsistent with those documents — credible, creating further uncertainty regarding the basis for the court’s findings and conclusions.

Although confusion in the record and the lack of County Court’s written findings may preclude us from confirming that defendant had three or more victims, the record clearly establishes two victims, requiring an assessment of 20 points under risk factor 3. Defendant’s convictions for rape and criminal sexual act were with one identified victim. His conviction for disseminating indecent materials to minors stemmed from his online interactions with an undercover officer. Contrary to defendant’s argument, the undercover officer, who posed as (and defendant thought was) a 14-year-old girl, can constitute a victim as contemplated by the Sex Offender Registration Act (see People v DeDona, 102 AD3d 58, 64-67 [2012]). While defendant may have had three or more victims, the record contains clear and convincing evidence that he had at least two victims. Thus, we assign 20 points, rather than 30, for that factor.

[*1389] Despite the lack of findings and clarity concerning defendant’s relationship with any other actual or potential victims, the record shows that the undercover officer was a stranger to defendant, and that he established an online relationship with her for purposes of victimization (see People v Duart, 84 AD3d 908, 909 [2011], lv dismissed 17 NY3d 916 [2011]; People v Tejada, 51 AD3d 472, 472 [2008]). As 20 points were properly assigned under risk factor 7 for that victim, we need not characterize defendant’s relationship with the rape victim. Even if we deduct 10 points under risk factor 3 due to factual uncertainty on that factor, defendant still has 85 points, placing him presumptively within risk level II. Accordingly, he was correctly classified as a risk level II sex offender.

Lahtinen, J.P., Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed, without costs.