People v. Burke

180 Misc. 2d 715, 690 N.Y.S.2d 897, 1999 N.Y. Misc. LEXIS 183
CourtNew York Supreme Court
DecidedApril 26, 1999
StatusPublished
Cited by3 cases

This text of 180 Misc. 2d 715 (People v. Burke) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Burke, 180 Misc. 2d 715, 690 N.Y.S.2d 897, 1999 N.Y. Misc. LEXIS 183 (N.Y. Super. Ct. 1999).

Opinion

OPINION OF THE COURT

Albert Tomei, J.

It is alleged that the defendant, Dennis Burke (hereinafter, defendant), repeatedly sexually assaulted a child over a period of years. In addition, it is alleged that the defendant possessed numerous lewd photographs of children, some of which depicted children engaging in sex acts, as well as videotaped depictions of defendant engaging in sex acts with young children. Defendant stands charged with numerous counts of sodomy in the second and third degrees, use of a child in a sexual performance, promoting an obscene sexual performance of a child, possessing an obscene sexual performance of a child, and endangering the welfare of a child.

Defendant moves to suppress evidence obtained from a search of defendant’s home made pursuant to a search warrant signed by a Judge of the Criminal Court. The court held an evidentiary hearing on defendant’s motion, at which Detective Kathleen Heavey testified for the People. After reviewing the warrant and the affidavit in support thereof, as well as the papers submitted by both parties on the motion, the court finds that the warrant was supported by probable cause, and was in all other respects legally sufficient. Therefore, the motion to suppress the evidence obtained thereby must be denied, except as to certain items seized which were beyond the scope of the warrant.

FINDINGS OF FACT1

On July 21, 1998, at approximately 5:30 p.m., the police were summoned to Fast Photo, a photo developing lab located at 8508 Bay Parkway in Brooklyn, in response to a 911 call from an employee at the lab. The employee informed the police that defendant had provided the lab with a roll of undeveloped film to be processed. After the film was developed, the employee saw that one of the resulting photographs depicted a young [717]*717child posed with her face, mouth agape, in close proximity to the clothed crotch of an adult male; the male depicted in the photographs appeared to be sexually aroused. Police officers waited at the photo lab for defendant to arrive. When defendant presented himself at the photo lab and requested the photographs, he was placed under arrest.

Detective Kathleen Heavey of the New York City Police Department Sexual Exploitation of Children Squad was assigned to investigate the case. At Victory Memorial Hospital, the detective spoke to the 11-year-old child depicted in the photograph with defendant, as well as her 8-year-old sister, who took the picture at defendant’s direction. The children’s mother was also present. Next, Detective Heavey went to the 62nd Precinct, the precinct within which defendant’s arrest had occurred, to voucher the photographs. The precinct desk sergeant told the detective that defendant’s son, John Burke, had inquired about getting access to defendant’s home for the purpose of retrieving a “cash box” containing $10,000 which he said he intended to use to pay for defendant’s legal expenses. Detective Heavey informed defendant’s son that he would not be permitted to enter the home at that time.

On the morning of July 22, 1998, Detective Heavey conferred with the District Attorney’s Office about whether to undertake a search of defendant’s home. The detective had learned that defendant resided at 2862 West 17th Street, Brooklyn, from pedigree information provided by defendant following his arrest. In addition, one of defendant’s neighbors informed the detective that defendant resided at 2862 West 17th; that he or she had seen children entering and exiting defendant’s home; that he or she knew the names of defendant’s children; and that he or she had suspected that defendant was a child molester.2 Detective Heavey also knew from her conversation with John Burke that defendant resided at 2862 West 17th Street.

Sometime between 12:00 p.m. and 12:30 p.m. on July 22, 1998, the detective took pictures of the exterior of the building located at 2862 West 17th Street, Brooklyn. As Detective Heavey took pictures of the residence, she saw a uniformed officer guarding the entrance to the home. The officer informed her that John Burke was sitting in a vehicle parked in front of the defendant’s residence and had insisted that he be permit[718]*718ted to enter the home. Detective Heavey spoke with John Burke, who again asked permission to get the cash box. The detective said that she would contact him at such time as he would be permitted to enter the home.

At approximately 8:25 p.m. on July 22, 1998, Detective Heavey submitted an application for a search warrant to a Judge of the Criminal Court (hereinafter, issuing Judge). In her affidavit in support of the warrant application, Detective Heavey stated the following, in pertinent part:

(1) That 11-year-old female and 8-year-old female “complaining witnesses” informed her that on or about July 21, 1998, at approximately 4:00 p.m., inside the complainants’ Brooklyn home, Dennis Burke instructed the younger child to take the photograph of the older child’s face with her mouth open in close proximity to defendant’s crotch (as described above). The older child stated that she felt a bulge against her face as she posed with defendant. According to the 11-year-old child, both she and the 8-year-old complainant had been photographed with defendant in similar poses numerous times on prior occasions.

(2) That at approximately 5:00 p.m. on July 21, 1998, Dennis Burke provided a roll of undeveloped film to a clerk at Fast Photo, who, after recognizing the indecent nature of the photographs, informed the police.

(3) That “deponent is further informed by witnesses known to the New York City Police Department that numerous children have been observed entering and exiting Dennis Burke’s home at the subject location at all hours of the day and night, unaccompanied by any other adult. These witnesses have also observed Dennis Burke give these children food, candy, and money.”

(4) That the “subject location is a three story red brick building, semi-attached, which is clearly marked ‘2862’ above the black metal door adjacent to the garden. There is a white door attached to the garage numbered 2862. The first floor apartment is on the ground floor of 2862 West 17th Street and includes the garage.”

(5) That, based upon her training and experience as a detective, including training in the New York City Police Department Sex Crimes Course and Vice Division Training Course (which includes education about pedophilia), Detective Heavey is “aware that sex offenders, particularly pedophiles, often retain mementos of their illicit sexual activity.”

[719]*719(6) Detective Heavey’s affidavit concluded that, “Based on the above, I believe that the subject location contains additional photographs of the complaining witnesses as well as other children, as well as diaries, journals, computer disks, NAMBLA literature/[3] child-related paraphernalia, photographic equipment, receipts from photo developing stores, and photo albums.”

(7) The affidavit requested permission to search “2862 West 17th Street, First Floor and Garage Brooklyn, N.Y.”4

In accordance with Detective Heavey’s request, the search warrant authorized the search of “2862 W.

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Related

People v. Pierre
51 Misc. 3d 1035 (New York Supreme Court, 2016)
United States v. Fogg
52 M.J. 144 (Court of Appeals for the Armed Forces, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
180 Misc. 2d 715, 690 N.Y.S.2d 897, 1999 N.Y. Misc. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-burke-nysupct-1999.