clear and convincing evidence standard in New York

2023Further, as defendant contends and the People correctly concede, in determining defendant's request for a downward departure the court should have applied a preponderance of the evidence standard rather than a clear and convincing evidence standard ( see People v Gillotti , 23 NY3d 841, 860-861 [2014]).

2023Accordingly, the imposition of 20 points under risk factor 13 was fully supported by the record. [FN2] Although defendant is correct that County Court mistakenly applied the clear and convincing evidence standard to his request for a downward departure, [FN3] "remittal is unnecessary as the record is sufficient to enable this Court to review defendant's contentions under the proper standard" ( People v Mathews , 181 AD3d 1103, 1105 [3d Dept 2020]; accord People v Dorvee , 203 AD3d 1413, 1415 [3d Dept 2022]; see People v Gillotti , 23 NY3d 841, 861, 864 [2014]).

2024Moreover, we agree with the Supreme Court's conclusion in its written decision ( see People v Sargeant , 64 Misc 3d at 496-498) that the clear and convincing evidence standard, applied to hearings to determine whether the defendant engaged in witness tampering ( see People v Geraci , 85 NY2d at 366-368 ; Matter of Holtzman v Hellenbrand , 92 AD2d 405 ; People v Sirois , 92 AD2d 618 ) likewise applies to hearings to determine whether the defendant engaged in jury tampering.

2024"However, the cumulative evidence and the inferences that logically flow therefrom must be sufficient to support a determination, under the clear and convincing evidence standard, that the defendant either was responsible for, or acquiesced in, the conduct that rendered the witness unavailable for trial" ( People v Thomas , 146 AD3d 991, 994 ; see People v Geraci , 85 NY2d at 370 ).

2020Initially, although defendant correctly asserts that the [*2]court should have applied a preponderance of the evidence standard to his request for a downward departure, rather than a clear and convincing evidence standard ( see Gillotti , 23 NY3d at 860-861 ), we need not remit the matter because the record is sufficient to enable us to review defendant's contention under the proper standard ( see People v Merkley , 125 AD3d 1479, 1479 [4th Dept 2015]).

2019Although Supreme Court should have applied a preponderance of the evidence standard to defendant's request for a downward departure rather than a clear and convincing evidence standard ( see People v Gillotti , 23 NY3d 841, 860-861 [2014]), we conclude that another remittal is not required because the record is sufficient to enable us to determine under the proper standard whether the court erred in denying defendant's request ( see People v Merkley , 125 AD3d 1479, 1479 [4th Dept 2015]).

2018It is a “a higher, more demanding standard than the preponderance standard” (In re Gail R., 67 AD3d 808 , 811–812 [2d Dept 2009] [internal quotation and citation omitted]), and it applies “[w]here particularly important personal interests are at stake” (Matter of Storar, 52 NY2d 363, 379 [1981]). -7- -8- SSM No. 42 Here, the SORA court assessed defendant 25 points for acquitted conduct, basing its decision on A.B.’s grand jury and trial testimony.

2005Ctr. [O’Connor], supra at 529; see Matter of Storar, supra at 379), the legislative memorandum states: “This clear and convincing evidence rule has been applied to thwart decisions even by court-appointed guardians, who in almost every other respect step into the shoes of their wards, and can make any decisions their wards could have made if competent.

2014The evidence presented at the Sirois hearing (see People v Sirois, 92 AD2d 618 [1983]; see also Matter of Holtzman v Hellenbrand, 92 AD2d 405 [1983]), and the inferences that logically flow therefrom, were sufficient to support the Supreme Court’s determination, under the clear and convincing evidence standard, that the defendant’s misconduct caused the witnesses’ unavailability to testify at trial and, thus, the People were properly allowed the use of the out-of-court statements as part of their direct case (see People v Cotto, 92 NY2d 68, 87 [1998]; People v Geraci, 85 NY2d 359, 368-370 [199

2014The evidence presented at the Sirois hearing (see People v Sirois, 92 AD2d 618 [1983]; see also Matter of Holtzman v Hellenbrand, 92 AD2d 405 [1983]), and the inferences that logically flow therefrom, were sufficient to support the Supreme Court’s determination, under the clear and convincing evidence standard, that the defendant’s misconduct caused the witnesses’ unavailability to testify at trial and, thus, the People were properly allowed the use of the out-of-court statements as part of their direct case (see People v Cotto, 92 NY2d 68, 87 [1998]; People v Geraci, 85 NY2d 359, 368-370 [199

2020The clear- and-convincing evidence standard is substantially more exacting than a mere preponderance of the evidence standard, requiring evidence sufficient to “satisf[y] the factfinder that it is highly probable that what is claimed actually happened” (Matter of Gail R., 67 AD3d 808, 811-812 [2d Dept 2009]; see Currie v McTague, 83 AD3d 1184, 1185 [3d Dept 2011]).

2018It is a “a higher, more demanding standard than the preponderance standard” (In re Gail R., 67 AD3d 808 , 811–812 [2d Dept 2009] [internal quotation and citation omitted]), and it applies “[w]here particularly important personal interests are at stake” (Matter of Storar, 52 NY2d 363, 379 [1981]). -7- -8- SSM No. 42 Here, the SORA court assessed defendant 25 points for acquitted conduct, basing its decision on A.B.’s grand jury and trial testimony.

2015Although we agree with defendant that the court should have applied a preponderance of the evidence standard to his request for a downward departure, rather than a clear and convincing evidence standard (see People v Gillotti, 23 NY3d 841, 860-861 [2014]), we need not remit the matter because the record is sufficient to enable us to review defendant’s contention under the proper standard (see generally People v Urban-ski, 74 AD3d 1882, 1883 [2010], lv denied 15 NY3d 707 [2010]).

2015Although we agree with defendant that the court should have applied a preponderance of the evidence standard to his request for a downward departure, rather than a clear and convincing evidence standard (see People v Gillotti, 23 NY3d 841, 860-861 [2014]), we need not remit the matter because the record is sufficient to enable us to review defendant’s contention under the proper standard (see generally People v Urban-ski, 74 AD3d 1882, 1883 [2010], lv denied 15 NY3d 707 [2010]).

2024Moreover, we agree with the Supreme Court's conclusion in its written decision ( see People v Sargeant , 64 Misc 3d at 496-498) that the clear and convincing evidence standard, applied to hearings to determine whether the defendant engaged in witness tampering ( see People v Geraci , 85 NY2d at 366-368 ; Matter of Holtzman v Hellenbrand , 92 AD2d 405 ; People v Sirois , 92 AD2d 618 ) likewise applies to hearings to determine whether the defendant engaged in jury tampering.

2024Here, the evidence presented at the Sirois hearing ( see People v Sirois , 92 AD2d 618 ; Matter of Holtzman v Hellenbrand , 92 AD2d 405 ) and the inferences that logically flow therefrom were sufficient to support the County Court's determination, under the clear and convincing evidence standard, that the defendant either was responsible for or had acquiesced in the conduct that rendered the complainant unavailable to testify at trial ( see People v Gordon , 222 AD3d 994, 995 ).

2020The clear- and-convincing evidence standard is substantially more exacting than a mere preponderance of the evidence standard, requiring evidence sufficient to “satisf[y] the factfinder that it is highly probable that what is claimed actually happened” (Matter of Gail R., 67 AD3d 808, 811-812 [2d Dept 2009]; see Currie v McTague, 83 AD3d 1184, 1185 [3d Dept 2011]).

2017The clear and convincing evidence standard means that petitioner must establish "that the evidence makes it highly probable that what [it] claims" is accurate (Prince, Richardson on Evidence § 3-205 [11th ed]; see NY PJI 1:64; Currie v McTague , 83 AD3d 1184, 1185 [2011]).

2026Turning to the denial of defendant's request for a downward departure, although we agree with defendant that County Court mistakenly applied the clear and convincing evidence standard to the request, "remittal is unnecessary as the record is sufficient to enable this Court to review defendant's contentions under the proper standard" ( People v Mathews , 181 AD3d 1103, 1105 [3d Dept 2020]; accord People v Dorvee , 203 AD3d 1413, 1415 [3d Dept 2022]).

2023Accordingly, the imposition of 20 points under risk factor 13 was fully supported by the record. [FN2] Although defendant is correct that County Court mistakenly applied the clear and convincing evidence standard to his request for a downward departure, [FN3] "remittal is unnecessary as the record is sufficient to enable this Court to review defendant's contentions under the proper standard" ( People v Mathews , 181 AD3d 1103, 1105 [3d Dept 2020]; accord People v Dorvee , 203 AD3d 1413, 1415 [3d Dept 2022]; see People v Gillotti , 23 NY3d 841, 861, 864 [2014]).

2013In Matter of McCormick v Axelrod ( 59 NY2d 574, 583 [1983]), the Court of Appeals held that the civil contempt must be proved “with reasonable certainty.” The “reasonable certainty” standard requires “a quantum of proof . . . greater than a preponderance of evidence but less than proof beyond a reasonable doubt. . . akin to the clear and convincing evidence standard” (Kihl v Pfeffer, 47 AD3d 154, 163-164 [2007]).

2013In Matter of McCormick v Axelrod ( 59 NY2d 574, 583 [1983]), the Court of Appeals held that the civil contempt must be proved “with reasonable certainty.” The “reasonable certainty” standard requires “a quantum of proof . . . greater than a preponderance of evidence but less than proof beyond a reasonable doubt. . . akin to the clear and convincing evidence standard” (Kihl v Pfeffer, 47 AD3d 154, 163-164 [2007]).

2016We conclude that the court properly determined that defendant’s alleged mitigating factor was not otherwise accounted for in the risk assessment guidelines (see generally People v Watson, 95 AD3d 978, 979 [2012]), but defendant failed to meet his burden of demonstrating by a preponderance of the evidence how that alleged mitigating factor would tend to reduce the risk of his own recidivism or danger to the community (see generally People v Johnson, 120 AD3d 1542, 1542 [2014], lv denied 24 NY3d 910 [2014]).

2016We conclude that the court properly determined that defendant’s alleged mitigating factor was not otherwise accounted for in the risk assessment guidelines (see generally People v Watson, 95 AD3d 978, 979 [2012]), but defendant failed to meet his burden of demonstrating by a preponderance of the evidence how that alleged mitigating factor would tend to reduce the risk of his own recidivism or danger to the community (see generally People v Johnson, 120 AD3d 1542, 1542 [2014], lv denied 24 NY3d 910 [2014]).

2016We conclude that the court properly determined that defendant’s alleged mitigating factor was not otherwise accounted for in the risk assessment guidelines (see generally People v Watson, 95 AD3d 978, 979 [2012]), but defendant failed to meet his burden of demonstrating by a preponderance of the evidence how that alleged mitigating factor would tend to reduce the risk of his own recidivism or danger to the community (see generally People v Johnson, 120 AD3d 1542, 1542 [2014], lv denied 24 NY3d 910 [2014]).

2016We conclude that the court properly determined that defendant’s alleged mitigating factor was not otherwise accounted for in the risk assessment guidelines (see generally People v Watson, 95 AD3d 978, 979 [2012]), but defendant failed to meet his burden of demonstrating by a preponderance of the evidence how that alleged mitigating factor would tend to reduce the risk of his own recidivism or danger to the community (see generally People v Johnson, 120 AD3d 1542, 1542 [2014], lv denied 24 NY3d 910 [2014]).

2015We conclude that defendant failed to meet that standard inasmuch as he did not establish the existence of any mitigating factors warranting a downward departure from his risk level (see People v Nethercott, 119 AD3d 918, 918 [2014], lv denied 24 NY3d 908 [2014]; People v Worrell, 113 AD3d 742, 742-743 [2014]).

2015We conclude that defendant failed to meet that standard inasmuch as he did not establish the existence of any mitigating factors warranting a downward departure from his risk level (see People v Nethercott, 119 AD3d 918, 918 [2014], lv denied 24 NY3d 908 [2014]; People v Worrell, 113 AD3d 742, 742-743 [2014]).

2015We conclude that defendant failed to meet that standard inasmuch as he did not establish the existence of any mitigating factors warranting a downward departure from his risk level (see People v Nethercott, 119 AD3d 918, 918 [2014], lv denied 24 NY3d 908 [2014]; People v Worrell, 113 AD3d 742, 742-743 [2014]).

2015We conclude that defendant failed to meet that standard inasmuch as he did not establish the existence of any mitigating factors warranting a downward departure from his risk level (see People v Nethercott, 119 AD3d 918, 918 [2014], lv denied 24 NY3d 908 [2014]; People v Worrell, 113 AD3d 742, 742-743 [2014]).

2026Turning to the denial of defendant's request for a downward departure, although we agree with defendant that County Court mistakenly applied the clear and convincing evidence standard to the request, "remittal is unnecessary as the record is sufficient to enable this Court to review defendant's contentions under the proper standard" ( People v Mathews , 181 AD3d 1103, 1105 [3d Dept 2020]; accord People v Dorvee , 203 AD3d 1413, 1415 [3d Dept 2022]).

2023Accordingly, the imposition of 20 points under risk factor 13 was fully supported by the record. [FN2] Although defendant is correct that County Court mistakenly applied the clear and convincing evidence standard to his request for a downward departure, [FN3] "remittal is unnecessary as the record is sufficient to enable this Court to review defendant's contentions under the proper standard" ( People v Mathews , 181 AD3d 1103, 1105 [3d Dept 2020]; accord People v Dorvee , 203 AD3d 1413, 1415 [3d Dept 2022]; see People v Gillotti , 23 NY3d 841, 861, 864 [2014]).

2024Moreover, we agree with the Supreme Court's conclusion in its written decision ( see People v Sargeant , 64 Misc 3d at 496-498) that the clear and convincing evidence standard, applied to hearings to determine whether the defendant engaged in witness tampering ( see People v Geraci , 85 NY2d at 366-368 ; Matter of Holtzman v Hellenbrand , 92 AD2d 405 ; People v Sirois , 92 AD2d 618 ) likewise applies to hearings to determine whether the defendant engaged in jury tampering.

2024Here, the evidence presented at the Sirois hearing ( see People v Sirois , 92 AD2d 618 ; Matter of Holtzman v Hellenbrand , 92 AD2d 405 ) and the inferences that logically flow therefrom were sufficient to support the County Court's determination, under the clear and convincing evidence standard, that the defendant either was responsible for or had acquiesced in the conduct that rendered the complainant unavailable to testify at trial ( see People v Gordon , 222 AD3d 994, 995 ).

2018While we agree with defendant that the court should have applied a preponderance of the evidence standard to his request, rather than a clear and convincing evidence standard ( see People v Gillotti , 23 NY3d 841, 860-861 [2014]), remittal is unnecessary inasmuch as the record is sufficient to enable this Court to review defendant's contentions under the proper standard ( see People v Loughlin , 145 AD3d 1426 , 1427-1428 [2016], lv denied 29 NY3d 906 [2017]; see generally People v Burke , 139 AD3d 1268, 1269 [2016], lv denied 28 NY3d 909 [2016]).

2017In any event, we are satisfied that, even applying the burden of proof adopted in Gillotti , defendant “did not demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines so as to warrant a downward departure” (People v Graziano, 140 AD3d 1541, 1542 [2016], lv denied 28 NY3d 909 [2016]).

2025Proof in the record that the "child-care agency . . . has satisfied its statutory obligation is a threshold consideration and a necessary prerequisite to any determination of permanent neglect" ( Sheila G. , 61 NY2d at 385-386 ; see also Matter of Michael B. , 58 NY2d 71, 73 [considering the legal issue of whether "the evidence in th(e) record is legally insufficient to meet the clear and convincing evidence standard" in a termination of parental rights proceeding]).

1983Although the court found that permanent neglect had been established by a fair preponderance of the evidence, this court will review the evidence in the record under the clear and convincing evidence standard required by Santosky v Kramer ( 455 US 745 ) {Matter of Michael B., 58 NY2d 71, 72-73 ).