Janet E. Sabel, New York, NY (Kerry Elgarten of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel; Nicole Kaye on the brief), for respondent.

Appeal by the defendant from an order of the Supreme Court, Richmond County (Mario F. Mattei, J.), dated October 26, 2018, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

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

The defendant was convicted, upon a plea of guilty, of criminal sexual act in the first degree. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), at which the defendant sought a downward departure from his presumptive level three risk designation, the Supreme Court designated the defendant a level three sex offender.

"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 [SORA] 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 People v Gillotti, 23 NY3d 841, 861 [2014]; People v Wyatt, 89 AD3d 112, 128 [2011]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). If the offender 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 offender's dangerousness and risk of sexual recidivism (see People v Gillotti, 23 NY3d at 861; People v Bigelow, 175 AD3d 1443, 1444 [2019]).

Here, the defendant failed to identify, as a matter of law, an appropriate mitigating factor and failed to establish the facts in support of the existence of any purported mitigating factor by a preponderance of the evidence (see People v Bright, 195 AD3d 868, 869 [2021]; People v Price, 164 AD3d 1282, 1283 [2018]; People v McCurdy, 121 AD3d 875, 875-876 [2014]).

Accordingly, the Supreme Court properly denied the defendant's request for a downward departure. Dillon, J.P., Connolly, Brathwaite Nelson and Genovesi, JJ., concur.