THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. NEIL GILLOTTI DEFENDANT APPELLANT (2014)

MEMORANDUM AND ORDER

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.

Memorandum:  This case is before us on remittal from the Court of Appeals (People v. Gillotti, 104 AD3d 1155, revd _ NY3d _ [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 AD3d at 1155).   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, _ NY3d at _).  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 AD3d 742, 742–743).

Frances E. Cafarell

Clerk of the Court