Raymond A. Tierney, District Attorney, Riverhead, NY (Christopher Turk and Lauren Tan of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated September 13, 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.

At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the County Court assessed the defendant 85 points on the risk assessment instrument, denied his application for a downward departure from his presumptive risk level, and designated him a level two sex offender. 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 Anthony, 40 NY3d 976; People v Gillotti, 23 NY3d 841, 861). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factors 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 Anthony, 40 NY3d 976; People v Gillotti, 23 NY3d at 861; People v Felton, 175 AD3d 734, 735; People v Champagne, 140 AD3d 719, 720).

Although an offender's response to treatment, if exceptional, may qualify as a mitigating factor that warrants a downward departure (see People v Flores-Hernandez, 219 AD3d 1533, 1534; People v Pena, 217 AD3d 693; People v Payne, 216 AD3d 1187; People v Lazzari, 169 AD3d 837, 838), here, the defendant failed to prove, by a preponderance of the evidence, that his response to treatment was exceptional (see People v Abdullah, 210 AD3d 704, 709; People v Cousin, 209 AD3d 1047, 1048; People v Lopez, 193 AD3d 992, 992-993).

The alleged support provided by the defendant's family was adequately taken into account by the Guidelines (see People v Rucano, 213 AD3d 709, 710; People v Parisi, 212 AD3d [*2]666, 668; People v Taylor, 199 AD3d 845, 846). Moreover, the defendant failed to demonstrate how his family support system established a lower likelihood of reoffense or danger to the community (see People v Koiki, 214 AD3d 1006, 1007; People v Parisi, 212 AD3d at 668).

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

IANNACCI, J.P., FORD, VOUTSINAS and MCCORMACK, JJ., concur.