
    The People of State of New York, Respondent, v Daniel Rodriguez, Appellant.
    [4 NYS3d 537]—
   Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated February 28, 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.

Once a presumptive risk level has been determined under the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), a defendant who requests a downward departure from that 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 [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v Wyatt, 89 AD3d 112, 128 [2011]; see People v Gillotti, 23 NY3d 841, 860-861 [2014]; People v Woods, 125 AD3d 622 [2015]).

Here, the defendant, whose presumptive risk level was three pursuant to an automatic override set forth in the SORA Guidelines, failed to identify any appropriate mitigating factor that would warrant a downward departure from that level. Accordingly, the County Court properly denied the defendant’s request for a downward departure to risk level two and adjudicated him a level three sex offender.

Skelos, J.P., Roman, Hinds-Radix and LaSalle, JJ., concur.  