| People v Gillotti |
| 2013 NY Slip Op 01650 [104 AD3d 1155] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v NeilGillotti, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
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 riskpursuant to the Sex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Defendant appeals from an order determining that he is a level threerisk pursuant to the Sex Offender Registration Act (Correction Law § 168 etseq.). We reject defendant's contention that County Court erred in assessing 10points against him under risk factor 15, for inappropriate employment. Inasmuch asdefendant admitted that he possessed over 1,000 images and videos of childpornography, we conclude that his employment at an amusement park in the vicinity ofchildren is "inappropriate" within the meaning of that risk factor (see SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 17-18[2006]). We further conclude that "defendant failed to present clear and convincingevidence of special circumstances justifying a downward departure" of his risk level (People v McDaniel, 27 AD3d1158, 1159 [2006], lv denied 7 NY3d 703 [2006]), particularly in view ofthe fact that he does not dispute that he possessed pornographic materials depictingsexual violence against children or that he knowingly obtained employment placing himin the vicinity of children (seePeople v Poole, 90 AD3d 1550, 1551 [2011]; cf. People v Bretan, 84 AD3d906, 907-908 [2011]). Present—Scudder, P.J., Fahey, Lindley, Valentino andMartoche, JJ.