People v. Gillotti
18 N.E.3d 701
NY2014Background
- This is a Sex Offender Registration Act (SORA) appeal addressing whether child pornography offenders may be scored under guideline factors 3 and 7.
- Gillotti involved a defendant with extensive child pornography files; the Board scored none under factors 3/7, the People sought 50 more points, and the court ultimately adjudicated level two; on appeal the Court reversed part.
- Fazio involved a Pennsylvania case where the Board scored factors 5 and 14; the People sought 3 and 7; the SORA court found level two based on total score and the appellate court affirmed.
- The Board issued a 2012 Position Statement urging review of how factors 3/7 apply to child pornography cases to avoid anomalous results.
- The majority rejects that the Position Statement bars scoring under factors 3/7 and holds the guidelines’ plain language allows scoring under these factors in child pornography cases.
- The decision resolves two like cases: Gillotti (remand for proper departure analysis) and Fazio (affirmation of level two) with Gillotti ultimately remitted for reconsideration under Johnson-based departure principles.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May factor 3 be scored for number of child victims depicted? | Gillotti/the People argued yes under guideline language. | Gillotti/defendant argued no; the positions statement barred it. | Yes; factors 3/7 permissible in child pornography cases. |
| Does the Board’s Position Statement bar factor 3/7 scoring in child pornography cases? | Gillotti/Fazio argue it bars or overrides guidelines. | Gillotti/Fazio argue it does not have force to amend the guidelines. | Position Statement does not bar scoring under factors 3 and 7. |
| What is the proper burden of proof for downward departures in SORA? | Gillotti argues clear and convincing evidence required. | Waters down the need for a uniform standard; Johnson approach. | Preponderance of the evidence standard applies to downward departures. |
Key Cases Cited
- People v Johnson, 11 NY3d 416 (N.Y. 2008) (recognized child victims as SORA victims and allowed departures for anomaly in factor 7)
- People v Gillotti, 104 AD3d 1155 (4th Dept 2013) (upheld scoring under factors 3/7 and departure analysis; remanded for proper standard of proof)
- People v Fazio, 106 AD3d 1291 (3d Dept 2013) (affirmed SORA level two based on factor score including 3; Board position statement discussed)
- People v Marrero, 37 Misc 3d 429 (Sup Ct NY County 2012) (discussed Johnson departure framework for child pornography cases)
- Poole, 90 AD3d 1550 (4th Dept 2011) (held that factor 3 can apply to number of victims in child pornography)
- Wyatt, 89 AD3d 112 (2d Dept 2011) (discussed burden of proof standard for departures (preponderance vs clear and convincing))