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A preponderance-of-evidence standard will be applied statewide to defendants convicted of child pornography offenses who are seeking to lower their risk assessments for repeating crimes.
The Court of Appeals, in a pair of decisions issued Tuesday, clarified the evidence standard for the four appellate departments, two of which, including the Fourth Department, had been using the higher standard of clear and convincing evidence for a convicted sex offender to prove mitigating factors to justify reducing his or her risk assessment.
In the case of People v. Gillotti (2014 NY Slip Op 04117), the Court of Appeals sent the case back to the Appellate Division, Fourth Department to determine if Neil Gillotti, 25, proved by a preponderance of the evidence that there were mitigating factors underlying his request to have his risk assessment reduced from a level 3, which is the highest, to a level 1.
Judge Robert S. Smith, who wrote a partial dissent, said he would have sent the case back to Niagara County Court to reconsider the assessment under People v. Johnson, 11 NY3d 416, which he called a common-sense approach to account for differences between offenders possessing child pornography and sex offenders who actually have physical contact with children.
Gillotti was represented by Joseph G. Frazier, a Niagara County public defender, who said the decision unifies the state.
He said when the risk assessment guidelines were written by the state Board of Examiners of Sex Offenders in 1995, the Internet was not widely used as it is today.
“We didn’t have the proliferation of child pornography, so they weren’t written with that in mind,” Frazier said. “They’re trying to fit a square peg into a round hole. They were trying to apply factors that were developed for contact crimes and these are non-contact crimes. There is some difference.”
Frazier said the way he reads the decision is that the majority and dissent appear to be inviting the board to mend its guidelines to reflect current situations.
The matter was prosecuted on appeal by Niagara County Assistant District Attorney Laura T. Bittner. She could not be reached for comment Thursday morning.
According to court documents, when Gillotti was 19, he was serving in the U.S. Air Force at a military base in England. While he was there, other military personnel found about 40 pornographic videos and numerous pornographic images featuring children between the ages of 5 and 14 on his laptop and desktop computers.
Gillotti claimed he had downloaded them when he was 14 or 15 years old and had viewed more than 1,000 child pornography files during his teenage years, but had long since stopped looking at them and simply failed to delete them from his computers.
Charges were brought, and he pleaded guilty to sexual exploitation of a child in violation of U.S. Code of Military Justice, Article 134-75, Title 18. Gillotti served his sentence in military custody, received a bad conduct discharge and returned to Middleport in Niagara County, where he was required under the New York state Sex Offender Register Act to register as sex offender.
The Board of Examiners of Sex Offenders, which assesses a defendant’s risk of repeating an offense and the threat to public safety, recommended Gillotti be classified as a level 2 offender, meaning he had a moderate risk of being a repeat offender. The Niagara County District Attorney’s Office asked that Gillotti be assessed a level 3.
The people maintained Gillotti should be given additional risk factors to raise his score because the number of children in the images exceeded three, he was a stranger to the victims and that his employment situation, working at an amusement park frequented by children, was inappropriate.
At an SORA hearing, to review the board’s recommendation, Gillotti opposed increasing the points, challenging the assessment of additional points under factor 3, which permits adding points based on the number of different children depicted in the child pornography.
The people presented evidence showing Gillotti had numerous violent and meticulously catalogued pornographic images and videos of children believed to be unknown to him. A military investigation also revealed Gillotti was 17 ½ when he tried to send someone a file entitled “13-year-old virgins forced into sex after school.”
Several of Gillotti’s family members and friends testified about Gillotti’s good character before he entered the military, including extensive volunteer work and community involvement. Gillotti also submitted several letters to the court, a certificate of completion from an anger management program, which had been provided to the military tribunal in support of a clemency request, and numerous articles describing the ease and frequency with which young people sometimes inadvertently accessed child pornography on the Internet.
In addition, Dr. David Heffler, a Lockport psychologist, testified Gillotti was polite, had no history of mental illness and did not show any interest in certain fetishes and violent sexual conduct, but that he may have viewed child pornography beyond his teen years, reflecting an unhealthy sexual interest in children. Heffler also identified a number of recidivism risk factors for Gillotti and recommended a diagnosis of non-exclusive types of hebophilia and pedophilia.
Judge Matthew J. Murphy III, in an Oct. 17, 2011 decision, determined Gillotti was a level 3 risk, a decision affirmed March 15, 2013 by the Appellate Division, Fourth Department which found Gillotti had not presented “clear and convincing evidence of special circumstances justifying a downward departure” from the recommended assessment, prompting the latest appeal.
The lower courts considered the amount of images Gillotti possessed and the fact that he retained them over an extended period of time as aggravating factors, warranting additional assessment points which raised Gillotti’s risk level.
In People v. Johnson, the Court of Appeals found the children featured in child pornography are victims and that consumption of a pornographer’s product contributed to their exploitation.
After the Johnson decision in 2012, the board of examiners issued a “Scoring of Child Pornography Cases Position Statement.” The board noted that case and People v. Poole, 90 AD3d 1550 (Fourth Dept. 2011), which authorized the assessment of points under factors 3 and 7 in child pornography cases, created an unintended anomaly in which the vast majority of offenders convicted of child pornography offenses would be scored the same as other types of sex offenders, even though there were vast differences among them.
The current cases, Gillotti and People v. Fazio from the Third Department, raised two other questions to which the Court of Appeals answered yes. It held factor 3 does permit scoring points based on the number of different children depicted in the pornography files possessed by a defendant and that the board’s position statement does not bar the assignment of points in factors 3 and 7 in child pornography cases; that a court has no statutory obligation to consider a position statement.
Gillotti did not oppose scoring pursuant to factor 7 which accounts for an increased rate of recidivism posed by an offender whose crime is directed at a stranger, as described in Johnson.
Frazier and Fazio’s attorney argued the “hands-off” nature of their clients’ child pornography offenses rendered them less dangerous to the public and less likely to actually commit “hands-on” sex offenses than other offenders so the scoring resulted in improper risk level classifications. They also argued the board’s statement barred the respective courts from scoring points under factors 3 and 7.
“We reject both contentions,” Judge Abdus-Salaam wrote for the majority.
The Court of Appeals, in Gillotti, found the points were properly assessed under factor 3, given that it draws no such distinction, but focuses on the number of children victimized.
It cites the recent decision in Paroline v. United States, __ US__, 134 S. Ct. 1710 [2014] in which the Supreme Court “discussed the great harm inflicted by those who download children pornography from the Internet.”
“Given that child pornography offenders substantially harm the mental health of abused children and, via the consumption of child pornography, encourage others to commit the hands-on sexual abuse needed to produce the material, it is difficult to credit defendants’ claims that, due to their failure to personally physically abuse children, the risk of harm caused by their offenses should be not be accounted for in the manner authorized by the plain language of factors 3 and 7,” the decision says.
“Although those aggravating factors may not represent the exact same risks in child pornography cases as those involving physical contact, the presence of those factors in child pornography cases increases the offender’s potential to psychologically harm a greater number of children to a greater degree.”
The Court of Appeals also notes the statute fails to set forth a standard of proof for a downward departure of risk assessment. It further notes the departments that adopted the clear and convincing evidence standard did not state a rationale, but “seem to have reached this conclusion” on the theory that the people must meet the clear and convincing evidence standard, so the same rule should apply to defendants.
Judge Smith agreed Gillotti should be reversed, but said he thought the majority’s discussion of guidelines factors 3 and 7 and the board of examiner’s position statement were flawed.
With respect to factor 3, Judge Smith said the majority ignores that the maximum number of victims is three, adding 30 points to the assessment.
“Far from taking account of the ‘sheer quantity’ of pornography an offender possesses, factor 3 treats the offender who possesses three pictures the same as one who possesses 3,000,” he wrote. “It is obvious that factor 3, like factor 7, was not devised with child pornography in mind; that factor, like factor 7, should be negated by granting a downward departure whenever factor 3 points are decisive in fixing an offender’s presumptive risk level.”
Judge Smith said he also disagreed that registering sex offenders in a public log does much to prevent recidivism by consumers of child pornography; that it doesn’t stop them from downloading pictures, but just lets the world know who and where they are.
“We disagree with the partial dissent’s contention that registration of child pornography offenders rarely benefits the community,” Judge Abdus-Salaam wrote. “Without registration of child pornography offenders, we leave these crimes in the shadows, potentially causing children and adults to underestimate the true dangers and terrible consequences for children and our society generally as a result of the offenders’ criminal acts.”
