Janet E. Sabel, New York, NY (Rachel L. Pecker of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Anne Grady of counsel; Esmer Mujaj on the brief), for respondent.

Appeal by the defendant from an order of the Supreme Court, Richmond County (Mario F. Mattei, J.), dated June 15, 2018, 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.

In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), the Supreme Court assessed the defendant 110 points, within the range for a presumptive designation as a level three sex offender. The court denied the defendant's request for a downward departure from his presumptive risk level and designated him a level three sex offender. The defendant challenges the denial of 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 [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]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). 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 [2016]).

An offender's response to treatment, if exceptional, can form the basis for a downward departure (see Guidelines at 17; People v Palomeque, 170 AD3d 1055, 1056 [2019]). Although the defendant submitted evidence that he participated in and completed a sex offenders treatment program, he failed to establish by a preponderance of the evidence that his response to treatment was exceptional (see People v Jimenez, 178 AD3d 1099, 1100-1101 [2019]; People v Santos, 174 AD3d 658, 659 [2019]; People v Palomeque, 170 AD3d at 1056; People v Guzman, 110 AD3d 863, 863-864 [2013]).

We also agree with the Supreme Court that no downward departure was warranted based on the defendant's deportation subsequent to the SORA adjudication, as he failed to establish [*2]that his deportation was, " 'as a matter of law, an appropriate mitigating factor' " (People v Morrison, 156 AD3d 831, 832 [2017], quoting People v Wyatt, 89 AD3d at 128; see People v Alvarez, 153 AD3d 645, 646 [2017]; People v Charles, 152 AD3d 721, 721-722 [2017]; People v Leshchenko, 127 AD3d 833 [2015]).

The defendant's contention that a departure was warranted because intra-familial sex offenders pose a lower risk of reoffense is without merit (see People v Palomeque, 170 AD3d at 1055; People v Meaders, 154 AD3d 978 [2017]; People v Ogata, 124 AD3d 416 [2015]).

Accordingly, we agree with the Supreme Court's determination designating the defendant a level three sex offender. Mastro, J.P., Miller, Duffy and Brathwaite Nelson, JJ., concur.