Crimes - Sex Offenders - Sex Offender Registration Act - Downward Departure

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated April 16, 2024, 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 criminal sexual act in the second degree. After a hearing pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6-C), the County Court assessed the defendant 90 points, denied the defendant's request for a downward departure from his presumptive risk level, and designated him a level two sex offender. The defendant appeals.

In establishing a defendant's risk level pursuant to SORA, the People "bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence" (Correction Law § 168-n [3]; see People v Bullock, 217 AD3d 886, 887 [2023]). "In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, . . . or any other reliable source, including reliable hearsay" (People v Crandall, 90 AD3d 628, 629 [2011]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006] [hereinafter Guidelines]).

"A defendant 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 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 Bigelow, 175 AD3d 1443, 1443 [2019], quoting People v Wyatt, 89 AD3d 112, 128 [2011]; see Guidelines at 4). " '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 Tleis, 222 AD3d 1012, 1012 [2023], quoting People v Bigelow, 175 AD3d at 1444; see People v Gillotti, 23 NY3d 841, 861 [2014]).

[*2] Here, the County Court properly denied the defendant's application for a downward departure. The alleged mitigating factors identified by the defendant either were adequately taken into account by the Guidelines or did not warrant a downward departure based on the totality of the circumstances (see People v Bonet, 225 AD3d 633, 635 [2024]; People v Vega, 189 AD3d 1288, 1289 [2020]).

Accordingly, the County Court properly designated the defendant a level two sex offender. Barros, J.P., Wooten, Love and Quirk, JJ., concur.