
    The People of the State of New York, Respondent, v Heriberto Torres, Appellant.
    [898 NYS2d 448]
   —Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or about October 31, 2008, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly exercised its discretion in declining to grant a downward departure from defendant’s presumptive risk level (see People v Mingo, 12 NY3d 563, 568 n 2 [2009]; People v Johnson, 11 NY3d 416, 421 [2008]). The mitigating factors cited by defendant were outweighed by the seriousness of the underlying crime and defendant’s sex-related misconduct in prison. Concur—Mazzarelli, J.P., Acosta, Renwick and Freedman, JJ.  