Patricia Pazner, New York, NY (Anna V. Boksenbaum of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel; Michael Lazard on the brief), for respondent.

Appeal by the defendant from an order of the Supreme Court, Queens County (Eugene M. Guarino, J.), dated June 14, 2021, 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 possessing a sexual performance by a child. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C [hereinafter SORA]), the Supreme Court assessed the defendant a total of 80 points, denied the defendant's request for a downward departure, and designated the defendant a level two sex offender.

"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 Umanzor, 189 AD3d 1479, 1480 [2020], 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" (People v Brocato, 188 AD3d 728, 728-729 [2020]).

Contrary to the defendant's contention, he failed to establish his entitlement to a downward departure from his presumptive risk level. The defendant's purported acceptance of responsibility for his actions and lack of a prior criminal record were adequately taken into account by the Guidelines (see People v Oyola, 217 AD3d 791, 792 [2023]; People v Garcia, 192 AD3d 833, 834 [2021]). Although lengthy periods of time during which a defendant has been at liberty without reoffense are not taken into account by the Guidelines or the risk assessment instrument (hereinafter RAI) (see People v Sotomayer, 143 AD3d 686, 687 [2016]), here, the defendant, who spent less than three years at liberty prior to the SORA hearing, failed to establish by a preponderance of the evidence that this period of time without reoffense demonstrated that the RAI overstated his risk of reoffense or that [*2]he has led an exemplary life such that he was entitled to a downward departure from the presumptive risk level (see People v Flores-Hernandez, 219 AD3d 1533 [2023]; People v Williams, 208 AD3d 806, 806-807 [2022]). Further, although a response to treatment may qualify as a ground for a downward departure where the response was "exceptional" (Guidelines at 17; see People v Washington, 84 AD3d 910, 911 [2011]), the defendant failed to establish the facts in support of that ground by a preponderance of the evidence (see People v Peaks, 207 AD3d 482, 483 [2022]). The defendant also failed to demonstrate, by a preponderance of the evidence, the existence of any other mitigating factors that would warrant a departure from his presumptive risk level (see People v Saunders, 209 AD3d 776, 778 [2022]).

Accordingly, the Supreme Court properly denied the defendant's request for a downward departure from his presumptive risk level and designated the defendant a level two sex offender. Iannacci, J.P., Christopher, Wooten and Taylor, JJ., concur.