New York City Legal Aid Society (Denise Fabiano of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Morgan J. Dennehy and Daniel Berman of counsel), for respondent.

Appeal from an order of the Criminal Court of the City of New York, Kings County (Quynda L. Santacroce, J.), dated February 18, 2022. The order, after a hearing, designated defendant a level three sex offender and a predicate sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs.

In the underlying criminal action, defendant was convicted, upon a plea of guilty, of sexual abuse in the third degree (Penal Law § 130.55). At a Sex Offender Registration Act (SORA) hearing, held pursuant to Correction Law article 6-C, defendant was assessed a total of 70 points under the risk assessment instrument, presumptively placing him within the range for a level one designation. However, based upon defendant's prior conviction of a felony sex crime, the Board of Examiners of Sex Offenders noted that there is an automatic override to a level three sex offender designation and recommended no downward departure therefrom (see People v Balcerak, 212 AD3d 662 [2023]; People v Rhinehart, 210 AD3d 706 [2022]; People v Jones, 196 AD3d 515 [2021]). The Board also indicated that defendant be designated a predicate sex offender. The Criminal Court designated defendant a level three sex offender and a predicate sex [*2]offender.

"The Risk Assessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders contain four overrides that automatically result in a presumptive risk assessment of level three" (People v Lobello, 123 AD3d 993, 994 [2014]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]; People v Barr, 205 AD3d 741 [2022]). "The first override, which is relevant to this appeal, is for a prior felony conviction of a sex crime" (People v McCurdy, 198 AD3d 991, 992 [2021]; see Guidelines at 3, 19). "The People bear the burden of proving the applicability of a particular override by clear and convincing evidence" (Lobello, 123 AD3d at 994; see Correction Law § 168-n [3]; People v Abdullah, 210 AD3d 704 [2022]). "Once the People have sustained this burden, 'a SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic' " (People v Johnson, 135 AD3d 720, 720-721 [2016], quoting People v Gordon, 133 AD3d 835, 836 [2015]; see Guidelines at 4).

Here, the People sustained their burden of proving, by clear and convincing evidence, the applicability of the override based on defendant's prior conviction of sexual abuse in the first degree, a class D felony (Penal Law § 130.65 [1]; see People v Mingo, 12 NY3d 563, 573 [2009]; People v Wolm, 209 AD3d 682 [2022]). Consequently, the Criminal Court properly determined that, based on the applicability of the override, defendant was, presumptively, a level three sex offender as it had no discretion to find otherwise (see Johnson, 135 AD3d at 720-721; Gordon, 133 AD3d 835).

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 Wyatt, 89 AD3d 112, 128 [2011]; see People v Gillotti, 23 NY3d 841, 861 [2014]; People v Bevel, 81 Misc 3d 127[A], 2023 NY Slip Op 51231[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]; 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 (see Gillotti, 23 NY3d at 861; People v Rodriguez, 184 AD3d 588 [2020]).

Here, the alleged mitigating factors identified by defendant either were adequately taken into account by the Guidelines or did not warrant a downward departure (see Gillotti, 23 NY3d at 861; People v Smith, 168 AD3d 1006 [2019]; People v Ragabi, 150 AD3d 1161 [2017]). Thus, the Criminal Court did not improvidently exercise its discretion in declining to grant a downward departure (see People v Cabrera, 91 AD3d 479 [2012]; People v Corbett, 65 Misc 3d 152[A], 2019 NY Slip Op 51885[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Defendant's present objection to being designated a predicate sex offender is unpreserved for appellate review as he did not raise the same contention to the Criminal Court that he raises now (see Correction Law § 168-n [3]; CPLR 4017, 5501 [a] [3]; Bevel, 2023 NY Slip Op 51231[U]). In any event, defendant's contention that, pursuant to Correction Law § 168-a (2) (b), the predicate sex offender designation only applies when the victim of the current offense is less than 18 years old is without merit because defendant qualified as a predicate sex offender under other provisions of Correction Law § 168-a (see Correction Law § 168-a [2] [c] [ii] [for the instant sex offense conviction]; § 168-a [3] [a] [i] [for the prior sex offense conviction]).

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.