PEOPLE of State of New York, Respondent, v. Alfred E. BALCUNS, Appellant.
DECISION & ORDER
Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J.), dated January 26, 2017, 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.
At a hearing pursuant to the Sex Offender Registration Act (see Correction Law § 168 et seq.; hereinafter SORA), the defendant was assessed 80 points under the Risk Assessment Instrument, which would have placed him within the range for a presumptive level two designation. However, based upon the defendant's 2001 conviction of sexual abuse in the first degree stemming from sex abuse charges involving a two-year-old or three-year-old child, the Board of Examiners of Sex Offenders recommended that the defendant be classified as a level three sex offender, as a defendant is deemed a presumptive level three predicate sex offender in circumstances where, as here, the defendant had committed repeated sex offenses (see People v. Berry, 138 A.D.3d 945, 946, 28 N.Y.S.3d 631; People v. Roache, 110 A.D.3d 776, 777, 973 N.Y.S.2d 271; People v. Carter, 85 A.D.3d 995, 996, 925 N.Y.S.2d 874).
The defendant contends that the County Court improvidently exercised its discretion in denying his request 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 A.D.3d 112, 128, 931 N.Y.S.2d 85; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4  ). Here, the mitigating circumstances identified by the defendant either were adequately taken into account by the SORA Guidelines or were not proven by a preponderance of the evidence (see People v. Velasquez, 145 A.D.3d 924, 924–925, 42 N.Y.S.3d 845; People v. Game, 131 A.D.3d 460, 461, 13 N.Y.S.3d 900; People v. Coleman, 122 A.D.3d 599, 599–600, 995 N.Y.S.2d 223; People v. Wyatt, 89 A.D.3d at 131, 931 N.Y.S.2d 85).
Accordingly, the County Court properly denied the defendant's request for a downward departure from his presumptive risk level designation.
SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.