Twyla Carter, New York, NY (Steven J. Miraglia of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and William H. Branigan of counsel; Ariel Gootkin and Rolanda Coleman on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Ushir Pandit-Durant, J.), dated September 30, 2021, 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 kidnapping in the second degree. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court assessed the defendant a total of 95 points on 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.

A defendant 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 otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d 112, 128; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [hereinafter Guidelines] at 4 [2006]; People v Gillotti, 23 NY3d 841, 861). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factors 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 (see People v Gillotti, 23 NY3d at 861).

Here, the defendant failed to establish that a downward departure was warranted. While a defendant's response to sex offender treatment may qualify as a ground for a downward departure where the response is "exceptional" (Guidelines at 17; see People v Washington, 84 AD3d 910, 911), the defendant failed to demonstrate by a preponderance of the evidence that his response to treatment, while positive, was exceptional (see People v Simms, 232 AD3d 815, 816; People v Coleman, 225 AD3d 792, 794). Moreover, the defendant failed to demonstrate how the support of his family established a lower likelihood of reoffense or danger to the community (see People v Rucano, 213 AD3d 709, 710; People v Peaks, 207 AD3d 482, 483; People v Saintilus, 169 AD3d [*2]838, 839). Furthermore, the defendant's expression of remorse and acceptance of responsibility were already taken into account by the Guidelines (see People v Banister, 243 AD3d 928, 928; People v Musarra, 240 AD3d 624, 625). Accordingly, the Supreme Court properly denied the defendant's application for a downward departure and designated the defendant a level two sex offender.

BRATHWAITE NELSON, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.