People v. Gillotti

• Citation: 23 N.Y.3d 841,2014 N.Y. Slip Op. 04117,18 N.E.3d 701,994 N.Y.S.2d 1
• Decision Date: 10 June 2014
• Docket Number: No. 97, 98,97, 98
• Parties: The PEOPLE of the State of New York, Respondent, v. Neil GILLOTTI, Appellant. The People of the State of New York, Respondent, v. George F. Fazio, Appellant.
• Court: New York Court of Appeals

23 N.Y.3d 841

18 N.E.3d 701

994 N.Y.S.2d 1

2014 N.Y. Slip Op. 04117

The PEOPLE of the State of New York, Respondent

v.Neil GILLOTTI, Appellant.

The People of the State of New York, Respondent

v.George F. Fazio, Appellant.

No. 97, 98

Court of Appeals of New York.

Argued April 30, 2014.

Decided June 10, 2014.

David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of counsel), for appellant in the first above-entitled action.

Michael J. Violante, District Attorney, Lockport (Laura T. Bittner and Thomas H. Brandt of counsel), for respondent in the first above-entitled action.

James P. Milstein, Public Defender, Albany (Christopher J. Ritchey of counsel), for appellant in the second above-entitled action.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

ABDUS–SALAAM, J.

In People v. Johnson, 11 N.Y.3d 416, 872 N.Y.S.2d 379, 900 N.E.2d 930 (2008), we recognized that children depicted in child pornography are “victims” of sex offenses

within the meaning of the Sex Offender Registration Act (Correction Law art. 6–C [SORA] ), and we held that where an offender is a stranger to such victims prior to his or her commission of a child pornography offense, the SORA Risk Assessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders (the Board) authorize the assessment of points under guidelines factor 7, which accounts for the increased risk of sexual recidivism posed by an offender whose crime is directed at a stranger (see Johnson, 11 N.Y.3d at 418–420, 872 N.Y.S.2d 379, 900 N.E.2d 930 ). Noting that the assignment of points to a child pornography offender under factor 7 may sometimes result in an excessive risk calculation in a manner not contemplated by the guidelines or the statute, we further determined that a court at a SORA hearing should account for that anomaly in a particular case by ordering a discretionary downward departure to a lower risk level classification (see id. at 420–421, 872 N.Y.S.2d 379, 900 N.E.2d 930 ).

In these appeals, we are called upon to answer three questions arising in the wake of Johnson. First, may a SORA court assess points against a child pornography offender under the plain language of guidelines factor 3, which is based on the number of victims involved in the offender's crime? Second, does a recent document issued by the Board, which describes the document as a position statement on the evaluation of child pornography cases under SORA, prohibit a SORA court from assigning points to an offender under factors 3 and 7? Third, where an offender requests a downward departure in a child pornography case, of any other SORA case, must the offender prove the facts supporting a departure by clear and convincing evidence or only by a preponderance of the evidence? We hold that factor 3 permits the scoring of points based on the number of different children depicted in the child pornography files possessed by an offender, that the Board's position statement does not bar the assignment of points under factors 3 and 7 in child pornography cases, and that an offender must prove the facts supporting a downward departure by a preponderance of the evidence.

IPeople v. Gillotti

In 2008, defendant Neil Gillotti, who was 19 years old at the time, was serving in the United States Air Force at a military base in England. Other military personnel discovered about 40 pornographic videos and numerous pornographic images featuring

children between the ages of 5 and 14 on defendant's laptop and desktop computers. When confronted about the pornographic files, defendant admitted that he possessed them, and he claimed that he had originally downloaded them when he was a teenager and that he had viewed over 1,000 child pornography files during his teenage years. After military charges were brought against defendant, he pleaded guilty to sexual exploitation of a child in violation of the United States Uniform Code of Military Justice article 134 (10 USC § 934 ) and 18 USC article 110. Defendant served his sentence in military custody, received a bad conduct discharge, was removed from service and returned to the United States.

Upon his return to the United States, defendant moved into his mother's house in Middleport, New York. Because defendant was required to register as a sex offender in New York pursuant to SORA, the Board prepared a risk assessment instrument (RAI) and case summary to assess defendant's risk of reoffending and his dangerousness to the community under the guidelines. The Board assigned points to defendant under a variety of guidelines factors, resulting in a total score of 55 and a presumptive risk level one classification.¹ As most pertinent for purposes of appeal, the Board did not assess points against defendant under factors 3 and 7. However, the Board recommended an upward departure to a risk level two classification.

Prior to a scheduled SORA hearing, the People requested that the court adjudicate defendant a risk level three sex offender by assigning him additional points pursuant to factors that did not form the basis of the Board's recommendation. In particular, the People asserted that defendant should be assigned additional points under the following guidelines factors: factor 3, number of victims (30 points for three or more victims); factor 7, relationship with victim (20 points for victims who were strangers to defendant); and factor 15, living/employment situation (10 points for defendant's employment situation being inappropriate). The People contended that, because numerous children were depicted in the pornographic images and were exploited for the viewing pleasure of defendant and other consumers of

child pornography, defendant should be assessed points for having victimized multiple children. Furthermore, in the People's view, defendant had an inappropriate employment situation, as he was working at a local amusement park where he was frequently exposed to children. Thus, the People argued, defendant should be assessed 115 points, rendering him a risk level three sex offender. At a SORA hearing, defendant generally opposed the People's request to order a risk level classification greater than the one recommended by the Board, specifically challenged any assessment of points under factor 3 and sought a downward departure; he did not, however, oppose scoring pursuant to factor 7.

At the hearing, the People submitted to the court the Board's RAI, the case summary, and the Air Force Office of Special Investigations case file. As noted, those materials revealed that defendant had possessed numerous violent and meticulously catalogued pornographic images and videos of children. As far as the People's documentary evidence revealed, defendant did not know any of the children featured in those computer files.

According to the military records, defendant claimed that he had downloaded the pornographic files when he was approximately 14 or 15 years old, that he had long since ceased viewing the files and that he had simply failed to delete them when he brought his computers with him to the Air Force. However, the military investigation revealed that when defendant was about 17 ½ years old, he had entered an Internet chat room and attempted to send someone a file entitled “13–year–old virgins forced into sex after school.” After his guilty plea, defendant wrote a letter of apology to one of the individuals depicted in his files, who had been located by the National Center for Missing and Exploited Children. In the letter, defendant expressed regret over viewing the images of this individual based on his own experience with sexual abuse, explaining that his mother had told him that he had been sexually abused by a family member in an incident that he could not recall.

As a counterpoint to the People's evidence at the hearing, defendant presented the testimony of certain friends and relatives. Defendant also submitted to the court several letters and a certificate of completion from an anger management program, all of which had been provided to the military tribunal in support of a clemency request, and defendant provided the court with newspaper and journal articles describing the ease and

frequency with which young people sometimes inadvertently accessed child pornography on the Internet. Defendant further presented the report of Dr. David Heffler, who had examined defendant in order to evaluate his likelihood of reoffending.

The defense witnesses testified about defendant's good character prior to his joining the military, describing his extensive volunteer work, community involvement, role model status, good reputation among friends and family, and computer skills. According to the witnesses, defendant lived with his mother, was almost never left alone in the house and did not engage in any inappropriate behavior. Defendant also had a steady six-month-old relationship with his girlfriend. Upon a friend's recommendation, defendant got a job at Darien Lake Amusement Park, where he was regularly in the presence of the children who visited the park.

Dr. Heffler reported that one of his associates had conducted a polygraph test of defendant. The polygraph results indicated that defendant had falsely told the examiner that he had not viewed child pornography since the age of 16, that he had not saved the pornographic files on his laptop after their discovery, that he had not known that he had transferred those files from an older computer to his laptop, and that he was no longer attracted to images of children.

The report also described Dr. Heffler's interview with defendant. In the interview, defendant explained that he had not participated in sex offender treatment after his release from military detention. Defendant had received counseling and antidepressant medication during the pendency of the legal proceedings in this case, and he had stopped watching child...