New York City Legal Aid Society (Lorraine Maddalo of counsel), for appellant. Kings County District Attorney (David Cao of counsel), for respondent.

Appeal from an order of the Criminal Court of the City of New York, Kings County (Keshia J. Espinal, J.), dated April 11, 2022. The order, after a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs.

In the underlying criminal action, defendant was convicted, upon his plea of guilty, of forcible touching (Penal Law § 130.52 [1]). At a Sex Offender Registration Act (SORA) hearing pursuant to Correction Law article 6-C, defendant was assessed a total of 105 points under the risk assessment instrument, presumptively placing him within the range for a level two designation. However, based upon defendant's prior conviction of a felony sex crime, the Board of Examiners of Sex Offenders recommended that defendant be classified as a level three sex offender pursuant to an automatic override (see People v Balcerak, 212 AD3d 662 [2023]; People v Rhinehart, 210 AD3d 706 [2022]; People v Jones, 196 AD3d 515 [2021]). The Criminal Court designated defendant a level three sex offender and defendant appeals.

"The Risk Assessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders contain four overrides that automatically result in a presumptive risk assessment of level three" (People v Lobello, 123 AD3d 993, 994 [2014]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]; People v Barr, 205 AD3d 741, 742 [2022]). "The first override, which is relevant to [*2]this appeal, is for a prior felony conviction of a sex crime" (People v McCurdy, 198 AD3d 991, 992 [2021]; see Guidelines at 3, 19). "The People bear the burden of proving the applicability of a particular override by clear and convincing evidence" (Lobello, 123 AD3d at 994; see Correction Law § 168-n [3]; People v Abdullah, 210 AD3d 704 [2022]). "Once the People have sustained this burden, 'a SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic' " (People v Johnson, 135 AD3d 720, 720-721 [2016], quoting People v Gordon, 133 AD3d 835, 836 [2015]).

Here, the People sustained their burden of proving, by clear and convincing evidence, the applicability of the override based on defendant's prior conviction of rape in the first degree (see People v Wolm, 209 AD3d 682 [2022]; see also People v Mingo, 12 NY3d 563, 573 [2009]). In light of our determination that an override was established, we need not reach defendant's challenge to the assessment of points under certain specified risk factors (see People v Hraklis, 214 AD3d 681 [2023]; Wolm, 209 AD3d at 683; Barr, 205 AD3d at 742; People v Berry, 138 AD3d 945 [2016]; People v Guitard, 57 AD3d 751 [2008]).

With respect to the hearing court's denial of defendant's request for a downward departure, courts apply three analytical steps to determine whether to order a downward departure (see People v Hatton, 72 Misc 3d 141[A], 2021 NY Slip Op 50838[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). First, the defendant must identify mitigating circumstances that are of a kind, or to a degree, not adequately taken into account by the SORA guidelines (see Guidelines at 4-5; People v Gillotti, 23 NY3d 841, 861-864 [2014]). Second, the defendant must prove the existence of those circumstances by a preponderance of the evidence (see Gillotti, 23 NY3d at 861-864; People v Kohout, 145 AD3d 922, 923 [2016]; People v Santiago, 137 AD3d 762 [2016]). Third, if the defendant satisfies the foregoing, "the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure" (Gillotti, 23 NY3d at 861). In exercising this discretion, the court must "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" (id.; see Kohout, 145 AD3d at 923).

Here, the alleged mitigating factors identified by defendant either were adequately taken into account by the Guidelines or did not warrant a downward departure (see Gillotti, 23 NY3d at 861; People v Smith, 168 AD3d 1006 [2019]; People v Ragabi, 150 AD3d 1161 [2017]; People v Ziliox, 145 AD3d 925 [2016]; People v Davis, 139 AD3d 1226 [2016]; People v Jackson, 139 AD3d 1031 [2016]).

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.