
    The People of State of New York, Respondent, v Samuel Samuel, Appellant.
    [65 NYS3d 770]
   Appeal by the defendant from an order of the Supreme Court, Richmond County (Rooney, J.), dated July 23, 2014, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

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

The defendant appeals from his designation as a level three sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C).

Since the defendant had already been released from incarceration before he became classified as a “sex offender” as a result of his conviction (Correction Law § 168-a [1]), the Supreme Court did not err in determining the defendant’s risk level based on a risk assessment instrument prepared by the District Attorney’s office instead of the Board of Examiners of Sex Offenders (see Correction Law §§ 168-d [3]; 168-1 [8]; People v Jean-Bart, 145 AD3d 690, 691 [2016]; People v Grimm, 107 AD3d 1040, 1042-1043 [2013]).

The Supreme Court properly denied the defendant’s application for a downward departure from his presumptive risk level designation, as he failed to establish the existence of any mitigating circumstances that are of a kind or to a degree not adequately taken into account by the Guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]; People v Gillotti, 23 NY3d 841, 861 [2014]; People v Rocano-Quintuna, 149 AD3d 1114, 1115 [2017]; People v Santiago, 137 AD3d 762, 765 [2016]; People v McKee, 66 AD3d 854, 855 [2009]).

The defendant’s remaining contention is unpreserved for appellate review and, in any event, without merit.

Rivera, J.R, Hall, Miller and Duffy, JJ., concur.  