Crimes - Sex Offenders - Sex Offender Registration Act - Downward Departure

Appeal by the defendant from an order of the Supreme Court, Queens County (Anthony M. Battisti, J.), dated April 14, 2025, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

The defendant was convicted, upon his plea of guilty, of course of sexual conduct against a child in the second degree (Penal Law § 130.80 [1] [b]). After a hearing pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6-C), the Supreme Court assessed the defendant a total of 75 points under the risk assessment instrument, denied the defendant's application for a downward departure from the presumptive risk level, and designated him a level two sex offender. The defendant appeals.

Contrary to the defendant's contention, the Supreme Court properly denied the defendant's application for a downward departure from presumptive risk level two to risk level one. "An offender seeking a downward departure from the presumptive risk level has the initial burden of (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is not otherwise taken into account by [the] Guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v Curry, 158 AD3d 52, 58 [2017]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v Gillotti, 23 NY3d 841, 861 [2014]). "If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism" (People v Khan, 182 AD3d 613, 614 [2020]; see People v Gillotti, 23 NY3d at 861; People v Bigelow, 175 AD3d 1443 [2019]).

Here, the defendant failed to establish an appropriate mitigating factor by a preponderance of the evidence. The defendant failed to demonstrate that his participation in sex offender treatment constituted an appropriate mitigating factor sufficient to warrant a downward departure. The defendant's willingness to participate in sex offender treatment was taken into account by risk factor 12 (acceptance of responsibility) (see People v Magnetic, 231 AD3d 875, 876 [2024]; People v Garcia, 192 AD3d 833, 834 [2021]). " '[A]lthough a defendant's response to sex offender [*2]treatment may qualify as a ground for a downward departure where the response [to treatment] is exceptional, here, the defendant failed to establish that his response to such treatment was exceptional' " (People v Pareja-Hidalgo, 222 AD3d 892, 893 [2023], quoting People v Saunders, 209 AD3d 776, 778 [2022]; see People v Zubradt, 224 AD3d 856 [2024]).

Moreover, the fact that the total number of points assessed to the defendant was at the low end of the range for a presumptive risk level two designation did not, by itself, constitute a ground for a downward departure from the presumptive risk level (see People v Dockery, 233 AD3d 808, 810 [2024], lv granted 43 NY3d 907 [2025]; People v Selin-Martinez, 229 AD3d 646, 648 [2024]; People v Rucano, 213 AD3d 709, 711 [2023]).

The defendant's remaining contentions are unpreserved for appellate review (see People v Howell, 213 AD3d 708, 709 [2023]) and, in any event, without merit (see People v Modesto, 233 AD3d 954, 955 [2024]). Dillon, J.P., Chambers, Wan and McCormack, JJ., concur.