Crimes - Sex Offenders - Sex Offender Registration Act - Response to Treatment Not Exceptional

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated May 14, 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 rape in the second degree (Penal Law § 130.30 [1]). After a hearing conducted pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6-C), the County Court found that the defendant was a presumptive level two sex offender, denied the defendant's application for a downward departure from his 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 Canales, 217 AD3d 785, 785 [2023], quoting 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 SORA court must exercise its discretion by weighing the mitigating factor to 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' " (People v Medina, 209 AD3d 775, 776 [2022], quoting People v Sofo, 168 AD3d 891, 891-892 [2019]).

The defendant failed to establish that a downward departure was warranted. While "[a] response to sex offender treatment may qualify as a ground for a downward departure where the defendant is able to demonstrate that his or her response is 'exceptional' " (People v Selin-Martinez, 229 AD3d 646, 647-648 [2024], quoting Guidelines at 17), here, the defendant failed to demonstrate that his response to sex offender treatment was exceptional (see id.; People v Coleman, 225 AD3d 792, 794 [2024]). Further, "[t]he fact that the total number of points assessed to the defendant was near the low end of the range for a presumptive level two designation did not, by itself, constitute a ground for [*2]a downward departure from the presumptive risk level" (People v Canales, 217 AD3d at 786; see People v Santos, 235 AD3d 788, 788 [2025]).

Accordingly, the County Court properly denied the defendant's application for a downward departure and designated the defendant a level two sex offender. Duffy, J.P., Dowling, Hom and Quirk, JJ., concur.