        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

89/13
KA 12-00297
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

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.


     Appeal from an order of the Niagara County Court (Matthew J.
Murphy, III, J.), dated October 17, 2011. The order determined that
defendant is a level three risk pursuant to the Sex Offender
Registration Act. The order was affirmed by order of this Court
entered March 15, 2013 in a memorandum decision (104 AD3d 1155), and
defendant on June 11, 2013 was granted leave to appeal to the Court of
Appeals from the order of this Court (21 NY3d 858), and the Court of
Appeals on June 10, 2014 reversed the order and remitted the case to
this Court for further proceedings (___ NY3d ___ [June 10, 2014]).

     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
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                                                         KA 12-00297

the evidence any ground for a downward departure from his risk level
(see People v Worrell, 113 AD3d 742, 742-743).




Entered:   July 11, 2014                        Frances E. Cafarell
                                                Clerk of the Court
