Crimes - Sex Offenders - Sex Offender Registration Act - Conviction of Possessing Sexual Performance by Child

Appeal by the defendant from an order of the Supreme Court, Richmond County (Lisa Grey, J.), dated March 7, 2022, 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 (Penal Law § 263.16). After a hearing conducted pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court assessed the defendant 85 points on the risk assessment instrument, rendering him a presumptive level two sex offender, denied the defendant's application for a downward departure, and designated the defendant a level two 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 [the] 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 Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]; People v Gillotti, 23 NY3d 841, 861 [2014]). "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 Bigelow, 175 AD3d 1443, 1444 [2019]; see People v Gillotti, 23 NY3d at 861).

Here, the purported mitigating factor consisting of the defendant's acceptance of responsibility was adequately taken into account by the Guidelines (see People v Palmer, 217 AD3d 793, 794 [2023]). Moreover, upon considering the other mitigating factors identified by the defendant, the totality of the circumstances did not warrant a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism (see People v Hizam, 236 AD3d 937 [2025]; People v Cronin, 235 AD3d 914, 915 [2025]). Connolly, J.P., Voutsinas, Landicino and Hom, JJ., concur.