Laurette D. Mulry, Riverhead, NY (Lisa Marcoccia of counsel), for appellant.

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

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Chris Ann Kelley, J.), dated May 11, 2020, 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.

The defendant was convicted, upon his plea of guilty, of possessing a sexual performance by a child less than 16 years of age (Penal Law § 263.16). Following a hearing to determine the defendant's risk level under the Sex Offender Registration Act (Correction Law art 6—C; hereinafter SORA), the County Court applied an automatic override to a presumptive risk level three classification based upon the defendant's 2005 conviction of course of sexual conduct against a child in the first degree (Penal Law § 130.75), denied the defendant's request for a downward departure from the presumptive risk level, and designated him a level three sex offender. The defendant appeals.

Since it was undisputed that the defendant had previously been convicted of a felony sex crime, he was presumptively a level three sex offender pursuant to an automatic override, irrespective of the points scored on the risk assessment instrument (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]; People v Manson, 111 AD3d 688, 688; People v Henry, 107 AD3d 678, 679). In light of our determination that an override was established, we need not reach the defendant's challenge to the assessment of points under risk factors 3 and 7 (see People v Barr, 205 AD3d 741, 742; People v Berry, 138 AD3d 945, 946; People v Richardson, 124 AD3d 743, 743; People v Barfield, 115 AD3d 835, 835; People v Manson, 111 AD3d at 688; People v Roache, 110 AD3d 776, 777).

Contrary to the defendant's contention, the County Court did not err in rejecting his argument for a downward departure from the presumptive risk level. "'Under SORA, a court must follow three analytical steps to determine whether or not to order a departure from the presumptive risk level'" (People v Locklear, 154 AD3d 888, 889, quoting People v Gillotti, 23 NY3d 841, 861; see People v Johnson, 135 AD3d 720, 721). "Regardless of whether the presumptive risk level has been determined by the assessment of points or the application of an override, a defendant who seeks a downward departure must first identify a mitigating circumstance or circumstances of a kind or to [*2]a degree not adequately taken into account by the guidelines" (People v Gordon, 133 AD3d 835, 836-837 [internal quotation marks omitted]; see People v Gillotti, 23 NY3d at 861, citing Guidelines at 4; People v Locklear, 154 AD3d at 889; People v Johnson, 135 AD3d at 721). The defendant then has the burden of proving by a preponderance of the evidence the existence of those circumstances in his or her case (see People v Gillotti, 23 NY3d at 861, 864; People v Gordon, 133 AD3d at 837). Only upon the defendant's satisfaction of that two-fold showing does the court become vested with discretion to depart from the presumptive risk level (see People v Gillotti, 23 NY3d at 861; People v Simmons, 170 AD3d 904, 905; People v Johnson, 135 AD3d at 721; People v Gordon, 133 AD3d at 837). Although a defendant's response to sex offender treatment, if exceptional, may qualify as a mitigating factor that warrants a downward departure, here, the defendant failed to prove by a preponderance of the evidence that his response to sex offender treatment was exceptional (see People v Emery, 204 AD3d 944, 945; People v Roelofsen, 195 AD3d 962, 963; People v Leung, 191 AD3d 1023, 1024; People v Torres, 124 AD3d 744, 746).

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

DILLON, J.P., CONNOLLY, CHRISTOPHER and WARHIT, JJ., concur.

Maria T. Fasulo

Clerk of the Court