Patricia Pazner, New York, NY (Tara Kumar of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Shlomit Heering of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), dated June 21, 2023, 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.

In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the Supreme Court, upon denying the defendant's request for a downward departure from his presumptive risk level, designated him a level two sex offender (see id. § 168-n). The defendant appeals.

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 Champagne, 140 AD3d 719, 720).

Here, the Supreme Court properly determined that the defendant failed to establish an appropriate mitigating factor by a preponderance of the evidence. While a defendant's response to sex offender treatment may qualify as a ground for a downward departure where the response is "exceptional," the defendant failed to demonstrate by a preponderance of the evidence that his "'response to treatment, while positive, was exceptional'" (People v Smith, 194 AD3d 767, 768, quoting People v Diaz, 180 AD3d 817, 818; see People v Abdullah, 210 AD3d 704, 706).

Contrary to the defendant's contention, the support of his family and friends was adequately taken into account by the Guidelines (see People v Haims, 203 AD3d 1184, 1186; People v Baez, 199 AD3d 1027, 1028). Moreover, the defendant failed to demonstrate how his support [*2]system will contribute to a lower likelihood of reoffense or danger to the community (see People v Melendez, 210 AD3d 1121, 1123; People v Saintilus, 169 AD3d 838).

The defendant's remaining contentions are either without merit or academic in light of the foregoing determination.

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

LASALLE, P.J., CHAMBERS, TAYLOR and GOLIA, JJ., concur.