Opinion
2014-07-11
The PEOPLE of the State of New York, Respondent, v. Neil GILLOTTI, Defendant–Appellant.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, and VALENTINO, JJ.
MEMORANDUM:
This case is before us on remittal from the Court of Appeals ( People v. Gillotti, 104 A.D.3d 1155, 960 N.Y.S.2d 578,revd.––– N.Y.3d ––––, –––N.Y.S.2d ––––, ––– N.E.2d –––– [June 10, 2014] ). We previously affirmed an order determining that defendant is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.) and concluded that, inter alia, defendant “ ‘failed to present clear and convincing evidence of special circumstances justifying a downward departure’ of his risk level” ( Gillotti, 104 A.D.3d at 1155, 960 N.Y.S.2d 578). In resolving a split in authority between the departments of the Appellate Division with respect to the applicable standard of proof, the Court of Appeals determined that a defendant seeking a downward departure must prove the facts warranting such a departure only by a preponderance of the evidence and remitted the matter to this Court to apply that standard of proof ( Gillotti, ––– N.Y.3d at ––––, –––N.Y.S.2d ––––, ––– N.E.2d ––––). Upon remittitur, we conclude that defendant, who submitted the testimony of friends and relatives and the report of an expert, failed to establish by a preponderance of the evidence any ground for a downward departure from his risk level ( see People v. Worrell, 113 A.D.3d 742, 742–743, 978 N.Y.S.2d 882).
Now, upon remittitur from the Court of Appeals,
It is hereby ORDERED that, upon remittitur from the Court of Appeals, the order so appealed from is unanimously affirmed without costs.