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

Appeal by the defendant from an order of the Supreme Court, Nassau County (Robert A. McDonald, J.), entered August 23, 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 course of sexual conduct against a child in the first degree. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court assessed the defendant a total of 95 points on the risk assessment instrument, denied the defendant's application for a downward departure from the presumptive risk level, and designated the defendant a level two sex offender. The defendant appeals.

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 Wyatt, 89 AD3d 112, 128 [2011]; 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 factors 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).

Here, the defendant failed to sustain his burden of proof in support of his application for a downward departure. Although a defendant's response to sex offender treatment may qualify as a ground for a downward departure where the response is exceptional (see Guidelines at 17; People v Washington, 84 AD3d 910, 911 [2011]), the defendant failed to establish that his response to treatment was exceptional (see People v Skipper, 235 AD3d 671, 672 [2025]; People v Coleman, 225 AD3d 792, 794 [2024]; People v Gonsales, 203 AD3d 760, 761 [2022]). The defendant's remaining contention is unpreserved for appellate review (see People v Howell, 213 AD3d 708, 709 [2023]; People v Melendez, 210 AD3d 1121, 1123 [2022]) and, in any event, without merit.

[*2] Accordingly, the Supreme Court properly denied the defendant's application for a downward departure from the presumptive risk level and designated him a level two sex offender. Iannacci, J.P., Brathwaite Nelson, Dowling and Golia, JJ., concur.