People v. Corinaldi

Summary

The New York Appellate Division, Second Department, affirmed an order designating Brandon Corinaldi a level two sex offender under Correction Law article 6-C. The court held that his arguments for a downward departure were either unpreserved, unsupported by a preponderance of the evidence, or otherwise without merit.

Holdings

1. A defendant seeking a downward departure from the presumptive risk level must identify an appropriate mitigating factor that tends to establish a lower likelihood of reoffense or danger to the community and is not adequately accounted for by the Guidelines, and must establish the facts supporting that factor by a preponderance of the evidence. If that showing is made, the court must weigh the factor and determine whether the totality of the circumstances warrants a departure.
2. The defendant's contention that he was entitled to a downward departure because the victim's lack of consent resulted only from the victim's age was unpreserved for appellate review; in any event, a downward departure was not warranted in light of, among other things, the age disparity between the 30-year-old defendant and the 14-year-old victim.
3. Although a defendant's response to treatment may qualify as a ground for a downward departure when the response is exceptional, the defendant failed to prove by a preponderance of the evidence that his response to treatment was exceptional.

Questions Presented

1. Whether the defendant's claim that the victim's lack of consent was attributable solely to the victim's age supported a downward departure from the presumptive risk level.
2. Whether the defendant established that his response to treatment was exceptional and warranted a downward departure.
3. Whether the Supreme Court properly denied the downward-departure application and designated the defendant a level two sex offender.

Disposition

affirmed