The Legal Aid Society, New York, NY (Bonnie C. Brennan of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Masha Simonova on the brief), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Deborah A. Dowling, J.), dated May 17, 2017, 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.

The defendant was convicted, upon his plea of guilty, of attempted criminal sexual act in the first degree. After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), the Supreme Court assessed the defendant 105 points on the risk assessment instrument, which placed him within the range for a presumptive designation as a level two sex offender. The court denied the defendant's application for a downward departure from the presumptive risk level. On appeal, the defendant challenges the assessment of 15 points under risk factor 9 (number and nature of prior crimes). In addition, the defendant contends that the court erred in denying his application for a downward departure.

The defendant's contention that the Supreme Court improperly assessed 15 points under risk factor 9 is unpreserved for appellate review, since he did not object to the assessment of these points at the SORA hearing (see People v Velez, 100 AD3d 847, 847-848 [2012]; People v Teagle, 64 AD3d 549, 550 [2009]). We decline to reach that contention in the interest of justice (see People v Game, 131 AD3d 460 [2015]).

We agree with the Supreme Court's determination to deny the defendant's application for a downward departure from the presumptive risk level. 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]). Most of the mitigating circumstances identified by the defendant in support of his application for a downward departure were adequately taken into account by the Guidelines (see People v Rocano-Quintuna, 149 AD3d 1114, 1115 [2017]; People v Robinson, 145 AD3d 805, 806 [2016]). Although a defendant's response to treatment may qualify as a [*2]ground for a downward departure where the response is exceptional (see People v Lagville, 136 AD3d 1005, 1006 [2016]; People v Washington, 84 AD3d 910, 911 [2011]), here, the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional (see People v Santiago, 137 AD3d 762, 764 [2016]; People v Torres, 124 AD3d 744, 746 [2015]).

Accordingly, the defendant was properly designated a level two sex offender. Mastro, J.P., Roman, Duffy and Brathwaite Nelson, JJ., concur.