
    The People of the State of New York, Respondent, v Robert Padilla, Appellant.
    [61 NYS3d 262]
   Appeal by the defendant from an order of the Supreme Court, Richmond County (Mattei, J.), dated March 16, 2016, which, after a hearing, designated him a level two 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 two sex offender pursuant to the Sex Offender Registration Act (see Correction Law § 168 et seq. [hereinafter SORA]), contending that the Supreme Court should have granted his application for a downward departure from his presumptive risk level designation.

A defendant seeking a downward departure must identify mitigating circumstances that are of a kind, or to a degree, not adequately taken into account by the SORA guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]), and must prove the existence of those circumstances by a preponderance of the evidence (see People v Gillotti, 23 NY3d 841, 861-864 [2014]; People v Kohout, 145 AD3d 922, 923 [2016]). If the defendant satisfies that burden, “the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure” (People v Gillotti, 23 NY3d at 861). In exercising this discretion, the court must 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 id.) People v Kohout, 145 AD3d at 923).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the defendant’s application for a downward departure from his presumptive designation as a level two sex offender (see People v Rocano-Quintuna, 149 AD3d 1114, 1115 [2017]; People v Robinson, 145 AD3d 805, 806 [2016]).

Mastro, J.P., Hall, Cohen and Iannacci, JJ., concur.  