Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.

Order, Supreme Court, New York County (Juan M. Merchan, J.), entered on or about April 9, 2013, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Defendant did not preserve his contention that the court applied the wrong standard in determining his application for a downward departure, and we decline to review it in the interest of justice. As an alternate holding, we find that although the court should have applied a preponderance of the evidence standard (see People v Gillotti, 23 NY3d 841, 856-857 [2014]), application of such a standard would not have affected the result because defendant failed to establish that the mitigating factors he alleged were of a kind or to a degree not adequately taken into account by the guidelines. Concur—Tom, J.P., Sweeny, Renwick, Andrias and Clark, JJ.