
    The People of the State of New York, Respondent, v Raymond Velasquez, Appellant.
    [42 NYS3d 845]
   Appeal by the defendant from an order of the Supreme Court, Kings County (Cyrulnik, J.), dated November 20, 2013, 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.

Contrary to the defendant’s contention, he was not entitled to a downward departure from his presumptive risk level. A downward departure from a sex offender’s presumptive risk level generally is warranted only where there exists a mitigating factor of a kind or to a degree not otherwise adequately taken into account by the Sex Offender Registration Act (hereinafter SORA) guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v Fryer, 101 AD3d 835, 836 [2012]). A defendant seeking a downward departure from the presumptive risk 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, 861 [2014]).

While a defendant’s response to treatment may qualify as a ground for a downward departure where the response is exceptional (see People v Washington, 84 AD3d 910, 911 [2011]), here, the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional (see People v Figueroa, 138 AD3d 708 [2016]; People v Santiago, 137 AD3d 762 [2016]; People v Game, 131 AD3d 460, 461 [2015]). In addition, the other factors identified by the defendant were either adequately taken into account by the SORA Guidelines, or did not warrant departure from the presumptive risk level (see People v Game, 131 AD3d at 461).

Accordingly, the Supreme Court properly denied the defendant’s request for a downward departure and designated him a level two sex offender.

Hall, J.R, Hinds-Radix, Maltese and Barros, JJ., concur.  