Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman 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 March 8, 2024, 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), the Supreme Court designated the defendant a level two sex offender, after assessing him 80 points on the risk assessment instrument and denying his request for a downward departure from his presumptive risk level. 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" (People v Alvarado, 173 AD3d 909, 910; see People v Gillotti, 23 NY3d at 861; People v Felton, 175 AD3d 734, 735; People v Champagne, 140 AD3d 719, 720).

Contrary to the defendant's contention, he was not entitled to a downward departure from his presumptive risk level. The Supreme Court properly determined that the imposition of points under risk factor 3 (number of victims) and risk factor 7 (relationship with victim) did not result in an overassessment of the defendant's risk to public safety (see People v Gillotti, 23 NY3d at 861; People v Glosque, 201 AD3d 823, 824; People v Sofo, 168 AD3d 891, 892; cf. People v Sestito, 195 AD3d 869, 870; People v Gonzalez, 189 AD3d 509, 511), and the defendant failed to otherwise demonstrate the existence of a mitigating factor not already taken into account by the Guidelines that would warrant a downward departure (see People v Pareja-Hidalgo, 222 AD3d 892, 893; People v Rucano, 213 AD3d 709, 711; People v Abdullah, 210 AD3d 704, 706; People v [*2]Taylor, 199 AD3d 845, 846).

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

BRATHWAITE NELSON, J.P., GENOVESI, LANDICINO and HOM, JJ., concur.