Court of Appeals — Sex Offender Registration Act: People v. Fazio; People v. Gilotti

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New York State Court of Appeals

Sex Offender Registration Act

Points Assessment — Downward Departure — Preponderance of Evidence

People v. Fazio; People v. Gilotti
Nos. 98 & 97
Judge Abdus-Salaam

Background: At issue in these appeals is whether a court may assess points against a child pornography offender under the Sex Offender Registration Act, which is based under the number of victims involved in the offender’s crime. Also, does a position statement from the SORA Board on the evaluation of child pornography prohibit a SORA court from assigning points to an offender under factors 3 and 7? Finally, where an offender requests a downward departure in a child pornography case, must the offender prove the facts supporting a departure by clear and convincing evidence?

Ruling: The Court of Appeals held that factor 3 permits the scoring of paints based on the number of different children depicted in the child pornography files possessed by an offender and that the Board’s position statement does not bar the assignment of points under factors 3 and 7. Further, an offender must prove the facts supporting a downward departure by a preponderance of the evidence.

No: 97: Joseph G. Frazier for the appellant; Laura T. Bittner for the respondent; No. 98: Christopher J. Ritchey for the appellant; Steven M. Sharp for the respondent