March 25, 2026

Appeals by the defendant from three orders of the Supreme Court, Queens County (Suzanne Melendez, J.), all dated May 17, 2019, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

Ordered that the orders are affirmed, without costs or disbursements.

In three proceedings pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court, after a hearing, assessed the defendant 80 points on the risk assessment instrument, rendering him a presumptive level two sex offender, denied the defendant's application for a downward departure from the presumptive risk level, and designated him a level two sex offender with respect to each proceeding. The defendant appeals.

Contrary to the defendant's contention, the Supreme Court properly assessed the defendant 20 points under risk factor 7 of the risk assessment instrument based on the defendant's relationship as a stranger to the victims (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006] [hereinafter Guidelines]; People v DeJesus-Jiminez, 232 AD3d 915, 915 [2024]; People v Thomas, 226 AD3d 1292, 1294 [2024]).

Further, the Supreme Court properly denied the defendant's application for a downward departure from the presumptive risk level. "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 Wagers, 243 AD3d 931, 933 [2025] [internal quotation marks omitted]; see 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 (see People v Gillotti, 23 NY3d at 861; People v Rogers, 222 AD3d 894, 896 [2023]).

[*2]Here, the defendant failed to establish that a downward departure was warranted. While a defendant's exceptional response to sex offender treatment may qualify as a ground for a downward departure, the defendant failed to demonstrate by a preponderance of the evidence that his response to treatment was exceptional (see People v Wagers, 243 AD3d at 934; People v Lorgo, 242 AD3d 1025, 1026 [2025]). Moreover, the defendant's purported steady employment was already taken into account by risk factor 15 (living/employment situation), for which the defendant was not scored any points on the risk assessment instrument (see People v Wagers, 243 AD3d at 934; People v Emery, 204 AD3d 944, 945 [2022]). Since the defendant failed to make the twofold showing on his application for a downward departure, the application was properly denied (see People v Banister, 243 AD3d 928, 930 [2025]).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit. LaSalle, P.J., Connolly, Taylor and Goldberg Velazquez, JJ., concur.