Janet E. Sabel, New York, NY (Lorraine Maddalo of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce of counsel; Isaiah Affron on the brief), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Elizabeth Foley, J.), dated May 23, 2016, 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 criminal sexual act in the second degree. After a risk level assessment hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), the Supreme Court 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.

We agree with the Supreme Court's determination to assess the defendant 15 points under risk factor 12 of the Risk Assessment Instrument. A refusal to participate in a sex offender treatment program demonstrates an unwillingness to accept responsibility for the crime (see People v Diaz, 169 AD3d 727, 727 [2019]; People v DeCastro, 101 AD3d 693, 694 [2012]). The " 'risk assessment guidelines do not contain exceptions with respect to a defendant's reasons for refusing to participate in treatment' " (People v Diaz, 169 AD3d at 727, quoting People v Grigg, 112 AD3d 802, 803 [2013]). Such evidence is "only relevant in considering a request for . . . downward departure" (People v Grigg, 112 AD3d at 803).

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 [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence' " (People v Diaz, 169 AD3d at 728, quoting People v Wyatt, 89 AD3d 112, 128 [2011]; see People v Gillotti, 23 NY3d 841, 861 [2014]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). 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 (see People v Gillotti, 23 NY3d at 861; People v Champagne, 140 AD3d 719, 720 [2016]).

Here, the mitigating factors identified by the defendant either were adequately taken into account by the Guidelines or did not tend to establish a lower likelihood of reoffense or danger to the community to warrant a departure. Accordingly, we agree with the Supreme Court's determination denying the defendant's application for a downward departure from the presumptive risk level (see People v Rocano-Quintuna, 149 AD3d 1114 [2017]). Balkin, J.P., Duffy, LaSalle and Connolly, JJ., concur.