REINALDO E. RIVERA
Affirmed.
Seymour W. James, Jr., New York, N.Y. (Denise Fabiano of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel; Michael C. Zebrowski on the brief), for respondent.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from an order of the Supreme Court, Kings County (McKay, J.), dated May 31, 2012, which, after a hearing, designated him a level two sexually violent offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
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 [Sex Offender Registration Act (hereinafter SORA) ] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” ( People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85; see People v. Gillotti, 23 N.Y.3d 841; People v. Wortham, 119 A.D.3d 666, 989 N.Y.S.2d 618).
Here, at the SORA hearing, the defendant requested that the Supreme Court downwardly depart from his presumptive risk level, relying, inter alia, upon his participation in a sex offender treatment program. In this respect, the defendant identified an appropriate mitigating factor that could provide a basis for a discretionary downward departure, as the SORA Risk Assessment Guidelines and Commentary recognizes that “[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]; see People v. Tisman, 116 A.D.3d 1018, 1019, 984 N.Y.S.2d 604; People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584; People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151). However, the defendant failed to establish facts in support of this mitigating factor by a preponderance of the evidence , because he did not establish that his response to treatment was exceptional ( see People v. Tisman, 116 A.D.3d at 1019, 984 N.Y.S.2d 604; People v. Jackson, 114 A.D.3d 739, 740, 980 N.Y.S.2d 152; People v. Guzman, 110 A.D.3d 863, 864, 973 N.Y.S.2d 310; People v. Washington, 105 A.D.3d 724, 725, 961 N.Y.S.2d 790; People v. Martinez, 104 A.D.3d 924, 925, 962 N.Y.S.2d 336).
The remaining factors identified by the defendant were either adequately taken into account by the SORA Guidelines ( see People v. Reede 113 A.D.3d 663, 664, 978 N.Y.S.2d 683; People v. Boykin, 102 A.D.3d 937, 938, 958 N.Y.S.2d 496), or did not warrant a downward departure from the presumptive risk level ( see People v. Sheppard, 114 A.D.3d 405, 406, 979 N.Y.S.2d 525; People v. Pittman, 113 A.D.3d 497, 978 N.Y.S.2d 840; People v. Grubbs, 107 A.D.3d 771, 773, 967 N.Y.S.2d 112; People v. Thomas, 105 A.D.3d 640, 963 N.Y.S.2d 583; People v. Harris, 93 A.D.3d 704, 706, 940 N.Y.S.2d 127). Accordingly, the Supreme Court properly denied the defendant's request for a downward departure from his presumptive designation as a level two sex offender.