The defendant appeals.Contrary to the defendant's contention, the People established by clear and convincing evidence that the defendant committed his offense against the victim on the same day he first met her and, thus, was a "stranger to the victim within the meaning of risk factor 7" ( People v. Cooper, 141 A.D.3d 710, 710, 36 N.Y.S.3d 195 [internal quotation marks omitted]; see People v. Palacios, 137 A.D.3d 761, 761–762, 26 N.Y.S.3d 351 ). Accordingly, we agree with the County Court's assessment of 20 points under risk factor 7.
We agree with defendant that the court erred in assessing 20 points under risk factor 7 on the ground that the victim and defendant were strangers. There was no direct evidence concerning the relationship between defendant and the victim (cf.People v. Cooper, 141 A.D.3d 710, 710, 36 N.Y.S.3d 195 [2d Dept. 2016], lv denied 28 N.Y.3d 908, 2016 WL 6827047 [2016] ; People v. Lewis, 45 A.D.3d 1381, 1381–1382, 845 N.Y.S.2d 585 [4th Dept. 2007], lv denied 10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010 [2008] ), and the circumstantial evidence on which the People rely does not constitute clear and convincing evidence that defendant and the victim were strangers. Nevertheless, even after subtracting those 20 points, defendant remains a level three risk (seePeople v. Loughlin, 145 A.D.3d 1426, 1427, 44 N.Y.S.3d 821 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 2017 WL 1719017 [2017] ), and defendant did not request a downward departure from that risk level.
We reject defendant's contention that the court erred in denying his request for a downward departure to a risk level one. Defendant failed to meet his initial burden of identifying and establishing mitigating factors that are not adequately taken into account by the risk assessment guidelines (see People v Cooper, 141 AD3d 710, 710-711, lv denied 28 NY3d 908).