Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, and Isaac Rounseville of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), entered July 6, 2022, which, after 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 was convicted in federal court, upon his plea of guilty, of receipt of child pornography (18 USC § 2252[a][2]). After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court assessed the defendant 95 points on the risk assessment instrument, denied his request for a downward departure from his presumptive risk level, and designated him a level two sex offender. On appeal, the defendant contends that the court erred in denying his request for a downward departure.

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 Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d 112, 128; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]; People v Gillotti, 23 NY3d 841, 861). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to 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 People v Gillotti, 23 NY3d at 861; People v Khan, 182 AD3d 613, 614).

Contrary to the defendant's contention, his risk level was properly assessed. Most of the circumstances cited by the defendant in support of his request for a downward departure were adequately taken into account by the Guidelines, including, inter alia, his acceptance of responsibility and remorse (see People v Ralph, 170 AD3d 900, 901), and his lack of a prior criminal record (see People v Edmee, 183 AD3d 766, 768). Although an offender's response to treatment, if exceptional, can be the basis for a downward departure (see Guidelines at 17; People v Roelofsen, 195 AD3d 962, 963), the defendant failed to establish the facts in support of that ground by a preponderance of the evidence (see People v Porciello, 193 AD3d 993, 994; People v Ralph, 170 AD3d at 902). Finally, [*2]although in some cases involving offenders who possessed child pornography, the assessment of points under risk factors 3 and 7 might result in an overassessment of the risk a defendant poses to the community (see People v Gillotti, 23 NY3d at 861), a downward departure was not warranted here because the nature and number of images found to have been possessed by the defendant militated against a downward departure (see People v Porciello, 193 AD3d at 994-995; People v Smith, 187 AD3d 1228, 1229).

Accordingly, the Supreme Court properly designated the defendant a level two sex offender.

DILLON, J.P., WARHIT, WAN and GOLIA, JJ., concur.