Janet E. Sabel, New York, NY (Denise Fabiano of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee of counsel; Nicole Hsuan on the brief), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Danny K. Chun, J.), dated February 6, 2020, 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 Supreme Court properly denied the defendant's application for a downward departure. 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 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 over-assessment of the defendant's dangerousness and risk of sexual recidivism (see People v Gillotti, 23 NY3d at 861; People v Jones, 196 AD3d 515, 516 [2021]).

Here, the defendant identified as a mitigating factor his response to sex offender treatment, which may provide a basis for a discretionary downward departure if his response to treatment was "exceptional" (Guidelines at 17; see People v Ellison, 197 AD3d 1258, 1259 [2021]; People v Jones, 196 AD3d at 516; People v Rodriguez, 170 AD3d 902, 903 [2019]; People v Santiago, 137 AD3d 762, 764 [2016]). However, the defendant failed to demonstrate by a preponderance of the evidence that his response to treatment was "exceptional" (see People v Ellison, 197 AD3d at 1259; People v Jones, 196 AD3d at 516; People v Rodriguez, 170 AD3d at 903; People v Santiago, 137 AD3d at 764; People v Dyson, 130 AD3d 600, 600-601 [2015]).

The additional mitigating factors cited by the defendant in support of his application either were adequately taken into account by the Guidelines (see People v Gillotti, 23 NY3d at 861; People v Young, 186 AD3d 1546, 1548 [2020]; People v Burrowes, 177 AD3d 1005, 1007 [2019]), or did not warrant a downward departure (see People v Burrowes, 177 AD3d at 1007; People v Saintilus, 169 [*2]AD3d 838, 839 [2019]).

Accordingly, the Supreme Court properly denied the defendant's application for a downward departure and designated him a level two sex offender. Dillon, J.P., Miller, Connolly, Iannacci and Dowling, JJ., concur.