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James Burke, ex-Suffolk Police Chief, appealing prison sentence

Former Suffolk police chief James Burke, left, on

Former Suffolk police chief James Burke, left, on the day of his December 2015 arrest, has filed a notice of appeal of his 46-month federal prison sentence for beating a heroin addict who stole a duffel bag from his police-issued SUV and orchestrating an elaborate cover-up Credit: James Carbone

Former Suffolk police chief James Burke has filed a notice of appeal of his 46-month prison sentence for beating a heroin addict who stole a duffel bag from his police-issued SUV and orchestrating an elaborate cover-up, according to court papers.

The notice — a first step in an appeal — was filed Tuesday in U.S. District Court in Central Islip by John Meringolo, Burke’s Manhattan-based attorney.

The former chief pleaded guilty in February to obstruction of justice and violating the civil rights of Christopher Loeb, the heroin addict who broke into Burke’s SUV and stole a bag containing pornography, sex toys and the chief’s ammunition belt. Burke subsequently assaulted Loeb inside the Fourth Precinct in Smithtown on Dec. 12, 2012.

The one-page notice does not provide any legal arguments and indicates that an appeal could be based on the sentence and not Burke’s conviction.

Meringolo’s sentencing memorandum, filed with the court in late October, offers what could be a basis for an appeal. Meringolo argued against the court’s inclusion of a two-level enhancement to the federal sentencing guidelines on the obstruction of justice charge, which can be added if the crime is “extensive in scope.”

He declined to comment Wednesday morning.

Burke, 52, of St. James, faced 41 to 51 months in prison under the terms of a plea deal when he was sentenced to 46 months on Nov. 2. He would have faced a lower range of 37 to 46 months without the guideline enhancement.

“While not minimizing the seriousness of the offense, there is nothing in the record of this matter that suggests Mr. Burke crafted a complex scheme to obstruct,” Meringolo wrote in the memo.

Nellin McIntosh, a spokeswoman for the U.S. attorney’s office for the Eastern District of New York, which prosecuted Burke, declined to comment on the notice of appeal.

Under federal Bureau of Prison rules, Burke, who is incarcerated at the Metropolitan Detention Center in Brooklyn, can be credited for up to 15 percent of his sentence for good behavior. The 11 months Burke has spent in custody since his December arrest will be subtracted from his sentence, meaning Burke could be out of prison in about 28 months.

While prosecutors had pushed for Burke to receive the maximum sentence of 51 months, Meringolo had asked the judge not to impose any prison time, citing the illness of Burke’s mother, Frances, and what he called his client’s otherwise “extraordinary career history.”

U.S. District Judge Leonard Wexler, who imposed the sentence, said Burke acted “as a dictator” in his role as the highest-ranking uniformed officer in the department.

“He corrupted a system, not on one act, but for three years,” the judge said at sentencing.

In Burke’s pre-sentencing memorandum, federal prosecutors said his scheme included “the recruiting of high-ranking officials from other county agencies to assist him in the obstruction and to give teeth to his threats.”

Newsday has reported that federal investigators are looking into whether Suffolk District Attorney Thomas Spota and one of his chief assistants, Christopher McPartland, participated in the cover-up.

The memo added: “SCPD members who witnessed the assault came under direct and extreme pressure from the defendants and others to conceal it.”

Spota, who met Burke as a teenage star witness in a murder trial, ultimately made Burke his chief investigator before Burke was named chief of department in the Suffolk County Police Department.

Spota has consistently declined to comment on the allegations.

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