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

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

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     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.). We reject defendant’s contention that
County Court erred in assessing 10 points against him under risk
factor 15, for inappropriate employment. Inasmuch as defendant
admitted that he possessed over 1,000 images and videos of child
pornography, we conclude that his employment at an amusement park in
the vicinity of children is “inappropriate” within the meaning of that
risk factor (see Sex Offender Registration Act: Risk Assessment
Guidelines and Commentary, at 17-18 [2006]). We further conclude that
“defendant failed to present clear and convincing evidence of special
circumstances justifying a downward departure” of his risk level
(People v McDaniel, 27 AD3d 1158, 1159, lv denied 7 NY3d 703),
particularly in view of the fact that he does not dispute that he
possessed pornographic materials depicting sexual violence against
children or that he knowingly obtained employment placing him in the
vicinity of children (see People v Poole, 90 AD3d 1550, 1551; cf.
People v Bretan, 84 AD3d 906, 907-908).




Entered:   March 15, 2013                          Frances E. Cafarell
                                                   Clerk of the Court
