preponderance of the 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]).

2020Although we agree with defendant that the County Court should have applied a preponderance of the evidence standard to defendant's request for a downward departure, remittal is unnecessary as the record is sufficient to enable this Court to review defendant's contentions under the proper standard ( see People v Gillotti , 23 NY3d 841, 845, 861 [2014]; People v Coe , 167 AD3d 1175 , 1176 [2018]; People v Simons , 157 AD3d 1063 , 1065 [2018]).

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]).

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]).

2014The Court of Appeals has determined that the preponderance of the evidence standard applies to commitment and retention orders (see Matter of George L., 85 NY2d 295, 303 [1995]; People v Escobar, 61 NY2d 431, 439-440 [1984]; see also Matter of Amir F., 94 AD3d 1209, 1210 [2012]; Matter of Michael RR. [Commissioner of Mental Health], 233 AD2d 30, 32-33 [1997], lvs dismissed 91 NY2d 921 [1998], 92 NY2d 886 [1998]).

2014The Court of Appeals has determined that the preponderance of the evidence standard applies to commitment and retention orders (see Matter of George L., 85 NY2d 295, 303 [1995]; People v Escobar, 61 NY2d 431, 439-440 [1984]; see also Matter of Amir F., 94 AD3d 1209, 1210 [2012]; Matter of Michael RR. [Commissioner of Mental Health], 233 AD2d 30, 32-33 [1997], lvs dismissed 91 NY2d 921 [1998], 92 NY2d 886 [1998]).

2014The Court of Appeals has determined that the preponderance of the evidence standard applies to commitment and retention orders (see Matter of George L., 85 NY2d 295, 303 [1995]; People v Escobar, 61 NY2d 431, 439-440 [1984]; see also Matter of Amir F., 94 AD3d 1209, 1210 [2012]; Matter of Michael RR. [Commissioner of Mental Health], 233 AD2d 30, 32-33 [1997], lvs dismissed 91 NY2d 921 [1998], 92 NY2d 886 [1998]).

2014The Court of Appeals has determined that the preponderance of the evidence standard applies to commitment and retention orders (see Matter of George L., 85 NY2d 295, 303 [1995]; People v Escobar, 61 NY2d 431, 439-440 [1984]; see also Matter of Amir F., 94 AD3d 1209, 1210 [2012]; Matter of Michael RR. [Commissioner of Mental Health], 233 AD2d 30, 32-33 [1997], lvs dismissed 91 NY2d 921 [1998], 92 NY2d 886 [1998]).

2014The Court of Appeals has determined that the preponderance of the evidence standard applies to commitment and retention orders (see Matter of George L., 85 NY2d 295, 303 [1995]; People v Escobar, 61 NY2d 431, 439-440 [1984]; see also Matter of Amir F., 94 AD3d 1209, 1210 [2012]; Matter of Michael RR. [Commissioner of Mental Health], 233 AD2d 30, 32-33 [1997], lvs dismissed 91 NY2d 921 [1998], 92 NY2d 886 [1998]).

2014The Court of Appeals has determined that the preponderance of the evidence standard applies to commitment and retention orders (see Matter of George L., 85 NY2d 295, 303 [1995]; People v Escobar, 61 NY2d 431, 439-440 [1984]; see also Matter of Amir F., 94 AD3d 1209, 1210 [2012]; Matter of Michael RR. [Commissioner of Mental Health], 233 AD2d 30, 32-33 [1997], lvs dismissed 91 NY2d 921 [1998], 92 NY2d 886 [1998]).

2014The Court of Appeals has determined that the preponderance of the evidence standard applies to commitment and retention orders (see Matter of George L., 85 NY2d 295, 303 [1995]; People v Escobar, 61 NY2d 431, 439-440 [1984]; see also Matter of Amir F., 94 AD3d 1209, 1210 [2012]; Matter of Michael RR. [Commissioner of Mental Health], 233 AD2d 30, 32-33 [1997], lvs dismissed 91 NY2d 921 [1998], 92 NY2d 886 [1998]).

2014The Court of Appeals has determined that the preponderance of the evidence standard applies to commitment and retention orders (see Matter of George L., 85 NY2d 295, 303 [1995]; People v Escobar, 61 NY2d 431, 439-440 [1984]; see also Matter of Amir F., 94 AD3d 1209, 1210 [2012]; Matter of Michael RR. [Commissioner of Mental Health], 233 AD2d 30, 32-33 [1997], lvs dismissed 91 NY2d 921 [1998], 92 NY2d 886 [1998]).

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]).

2025The preponderance of the evidence standard requires enough evidence to "produce a reasonable belief in the truth of the facts asserted" ( Jarrett v. Madifari, 67 AD2d 396, 404 [1st Dept. 1979] [internal quotation marks omitted]; 8 Carmody-Wait 2d § 56:14 ("A party who has the burden of proof by a preponderance of the evidence must prove his or her contention by the greater weight of evidence")).

2021The preponderance of the evidence standard requires enough evidence to "produce a reasonable belief in the truth of the facts asserted" ( Jarrett v Madifari , 67 AD2d 396, 404 [internal quotation marks omitted]).

2023Indeed, [the Court of Appeals] rejected a preponderance of the evidence standard as the People's burden of proof, and instead deemed 'the clear and convincing evidence standard to be the test that best recognizes the gravity of the interest at stake' " ( People v Johnson , 93 NY2d 254, 258 [1999] [internal quotation marks omitted], quoting People v Geraci , 85 NY2d at 367 ).

2023Indeed, [the Court of Appeals] rejected a preponderance of the evidence standard as the People's burden of proof, and instead deemed 'the clear and convincing evidence standard to be the test that best recognizes the gravity of the interest at stake' " ( People v Johnson , 93 NY2d 254, 258 [1999] [internal quotation marks omitted], quoting People v Geraci , 85 NY2d at 367 ).

2025The preponderance of the evidence standard applies ( see People v Addimando , 197 AD3d 106, 112 ).

2025"The preponderance of the evidence standard applies" ( People v Rivera , 230 AD3d at 519; see People v Addimando , 197 AD3d at 112 ).

2018It is well established that substantial evidence is generally the applicable evidentiary standard for disciplinary matters involving public employees under Civil Service Law § 75, and that due process requires application of the preponderance of the evidence standard only "when the penalty of dismissal is accompanied by some added stigma" ( Matter of Suitor v Keller , 256 AD2d 1140, 1140 [4th Dept 1998]; see Matter of Miller v DeBuono , 90 NY2d 783, 794 [1997]; Matter of Field v Board of Educ., Yonkers Pub.

2018In reviewing a disciplinary hearing, the preponderance of the evidence standard generally applies only when the penalty of dismissal is accompanied by some added stigma ( see Matter of Miller v DeBuono , 90 NY2d 783, 791-794 ).

2007One purpose of a permanency hearing is to audit, under a preponderance of the evidence standard, whether an agency is meeting its legal obligations and to review a parent’s compliance with the approved service plan (Matter of Tatiana R., 17 Misc 3d 443 [Fam Ct, Kings County 2007], citing Matter of Belinda B., 114 AD2d 70 [4th Dept 1986]).

2007One of the purposes of a permanency hearing is to conduct an audit, under a preponderance of the evidence standard, in order to ensure that the agency is meeting its [*5]obligations under the law and to review the parent's compliance with the approved service plan. ( See , Matter of Belinda B. , 114 AD2d 70 [4th Dept 1986] [holding that in a proceeding concerning the extension of foster care placement, the petitioner must establish by a preponderance of the evidence, the continued inability of the parents to take care of the child and that continued placement would serve the child's best inter

1994Moreover, we note that the preponderance of the evidence standard in child abuse cases does not offend due process (see, Matter of Nicole V, 71 NY2d 112 ; Matter of Katrina W., 171 AD2d 250 ).

1991We note that dicta in cases following Matter of Tammie Z., do not support the proposition that a different standard of proof is required in abuse cases (see, e.g., Matter of Nicole V., 71 NY2d 112 [a finding of abuse or neglect need only be supported by a preponderance of the evidence standard]; Matter of Linda K., 132 AD2d 149 [a finding of neglect or abuse must be based on a preponderance of the evidence, rather than clear and convincing evidence standard]; Matter of Ryan D., 131 AD2d 569 [in a child abuse proceeding, the trial court erroneously applied a clear and convincing standard of pro

1983“The preponderance of the evidence standard applies in civil cases, including civil penalty cases.” (United States v F/V Repulse, 688 F2d 1283, 1284.) While under this standard the parties “share the risk of error in roughly equal fashion” (Addington v Texas, supra, p 423), this should not authorize the commissioner to shift the burden, however slight.

1981The court in Addington v Texas ( 441 US 418, 432-433 ) clearly and in unmistakable descriptive language stated that in a civil commitment proceeding, “To meet due process demands, the standard has to inform the factfinder that proof must be greater than the preponderance of the evidence standard applicable to other categories of civil cases”.

2023We agree with defendant that County Court erred in applying a clear and convincing evidence standard rather than the preponderance of the evidence standard to his request for a downward departure from his presumptive risk level and in denying that request ( see People v Loughlin , 145 AD3d 1426 , 1427 [4th Dept 2016], lv denied 29 NY3d 906 [2017]).

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]).

2007One purpose of a permanency hearing is to audit, under a preponderance of the evidence standard, whether an agency is meeting its legal obligations and to review a parent’s compliance with the approved service plan (Matter of Tatiana R., 17 Misc 3d 443 [Fam Ct, Kings County 2007], citing Matter of Belinda B., 114 AD2d 70 [4th Dept 1986]).

2007The agency nevertheless maintains discretion to file for a petition for termination of parental rights if the statutory grounds exist, regardless of the status of the permanency hearing. ( See , Belinda B ., 114 AD2d at 76 [holding that Family Court should have issued a temporary order extending placement of the child in foster care until the permanent neglect proceeding was resolved]; see , Matter of Lindsay W. , 129 AD2d 800, 802 [2d Dept 1987] [reasoning that a temporary extension of placement should have been issued by the Family Court since it would{** 17 Misc 3d at 452 } have facilitated

2004Initially, we note that the preponderance of the evidence standard is the proper standard of review governing such proceedings (see Matter of Amanda RR., 230 AD2d 451, 453 [1997]; see also Matter of Raul R, 292 AD2d 245, 246 [2002], lv denied 98 NY2d 607 [2002]).

1998The Family Court properly applied a preponderance of the evidence standard, rather than the standard of proof beyond a reasonable doubt, since probation revocation in juvenile delinquency proceedings is dispositional in nature and not part of the adjudicatory process (see, Family Ct Act § 350.3 [2]; § 360.3; Matter of Amanda RR., 230 AD2d 451 ; Matter of Alpheaus M., 168 AD2d 208 ; Matter of Gregory M., 131 Misc 2d 942 ).