What is the test for a motion to remove a defendant from the New York State Criminal Court by a preponderance of clear and convincing evidence?

of clear and convincing evidence. In placing this exceptional burden on the Peoplea burden not otherwise mandated by constitutional due process (see In re W.M., 851 A.2d 431, 453454 [D.C.2004] ; see also People v. Escobar, 61 N.Y.2d 431, 439440, 474 N.Y.S.2d 453, 462 N.E.2d 1171 [1984] )the legislature evidently sought to carefully guard a defendant's liberty interest. Consistent with that legislative intent and the general practice in civil cases, we hold that a defendant must prove the existence of the mitigating circumstances upon which he or she relies in advocating for a departure by a mere preponderance of the evidence.