Twyla Carter, New York, NY (Natalie Rea of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Danielle M. O'Boyle of counsel; Sarah Coon on the brief), for respondent.

Appeal by the defendant from an order of the Supreme Court, Queens County (Kenneth C. Holder, J.), dated March 22, 2019, 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 attempted rape in the first degree. At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court assessed the defendant 95 points, denied his application for a downward departure to level one, and designated him a level two sex offender. The defendant appeals.

A defendant seeking a downward departure from a 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 [2011]; see People v Gillotti, 23 NY3d 841, 861 [2014]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). If the defendant makes that two-fold 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 Felton, 175 AD3d 734, 735 [2019]).

Here, the defendant failed to demonstrate that the assessment of points under risk factor 9 for a prior violent felony conviction resulted in an overassessment of his risk level (see People v Henson, 213 AD3d 958, 958 [2023]; People v Wyatt, 89 AD3d at 130-131).

The defendant's remaining contentions as to why he should have been granted a downward departure are unpreserved for appellate review and, in any event, without merit. Connolly, J.P., Genovesi, Warhit and Wan, JJ., concur.