Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Molly Morgan of counsel), for respondent.
Gische, J.P., Kern, Friedman, Oing, Singh, JJ.
Order, Supreme Court, New York County (Robert M. Stolz, J.), entered on or about February 20, 2018, which adjudicated defendant a level sex two offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The court properly exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Although an exceptional response to sex offender treatment may qualify as a mitigating factor not accounted for in the risk assessment instrument, defendant did not establish his response to sex offender therapy was exceptional ( People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 [1st Dept. 2016] ). In any event, it would not outweigh the seriousness of defendant's underlying offense (see e. g. People v. Rivera, 123 A.D.3d 639, 999 N.Y.S.2d 76 [1st Dept. 2014] ).