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The People of the State of New York v. Neil Gillotti

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


March 15, 2013

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
NEIL GILLOTTI,
DEFENDANT-APPELLANT.

Appeal from an order of the Niagara County Court (Matthew J. Murphy, III, J.), dated October 17, 2011.

People v Gillotti

Released on March 15, 2013

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.

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 assessing10 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

20130315

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