PEOPLE v. SIVELLS

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court providently exercised its discretion in denying the defendant's application for a downward departure from his presumptive risk level status. The party seeking a downward departure from the presumptive risk level has the burden of demonstrating that there are mitigating factors "of a kind, or to a degree, that [are] otherwise not adequately taken into account" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]) by the guidelines ( see People v Mendez, 79 AD3d 834, lv denied 16 NY3d 707; People v Johnson, 77 AD3d 897, lv denied 16 NY3d 704; People v Maiello, 32 AD3d 463). Here, the defendant failed to demonstrate that there existed mitigating factors of a kind or to a degree not otherwise taken into account by the guidelines.