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

288
KA 15-02153
PRESENT: WHALEN, P.J., SMITH, CENTRA, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ADAM J. SEABOLT, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Monroe County Court (Christopher S.
Ciaccio, J.), entered November 24, 2015. The order determined that
defendant is a level three risk pursuant to the Sex Offender
Registration Act.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Monroe County Court for further proceedings in accordance
with the following memorandum: Defendant appeals from an order
determining that he is a level three risk pursuant to the Sex Offender
Registration Act (Correction Law § 168 et seq.). As the People
correctly concede, County Court erred in applying an incorrect
standard of proof when it granted the People’s request for an upward
departure to a level three risk. The court found the existence of the
aggravating factors by a preponderance of the evidence, but it is well
settled that, “because Correction Law § 168-n (3) compels the People
to prove the existence of facts supporting a defendant’s overall risk
level classification by clear and convincing evidence, the People
cannot obtain an upward departure pursuant to the guidelines unless
they prove the existence of [the alleged] aggravating circumstances by
clear and convincing evidence” (People v Gillotti, 23 NY3d 841, 861-
862). We therefore reverse the order, and we remit the matter to
County Court for a determination of the People’s request for an upward
departure, following a further hearing if necessary.




Entered:    March 24, 2017                         Frances E. Cafarell
                                                   Clerk of the Court
