Here, the defendant failed to demonstrate that he was entitled to a downward departure due to mitigating circumstances. Although an offender's "advanced age" upon release (Guidelines at 5; seePeople v. Santiago, 137 A.D.3d 762, 764–765, 26 N.Y.S.3d 339 ; People v. Torres, 124 A.D.3d 744, 746, 998 N.Y.S.2d 464 ) and an offender's exceptional response to treatment may qualify as grounds for a downward departure (seePeople v. Santiago, 137 A.D.3d at 764, 26 N.Y.S.3d 339 ; People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151 ), the defendant failed to establish the facts in support of these grounds by a preponderance of the evidence (seePeople v. Whitney, 168 A.D.3d 776, 89 N.Y.S.3d 638 ; People v. Ramirez, 163 A.D.3d 1012, 81 N.Y.S.3d 576 ; People v. Morris, 161 A.D.3d 1111, 73 N.Y.S.3d 905 ; People v. Rodriguez, 159 A.D.3d 842, 69 N.Y.S.3d 825 ; People v. Tromba, 157 A.D.3d 915, 66 N.Y.S.3d 907 ; People v. Santiago, 137 A.D.3d 762, 26 N.Y.S.3d 339 ). Moreover, the remaining factors on which the defendant relied, including his remorse, participation in educational and vocational programs, and release environment, had already been taken into account by the Guidelines (seePeople v. Rocano–Quintuna, 149 A.D.3d 1114, 1115, 53 N.Y.S.

Most of the circumstances cited by the defendant in support of his application were adequately taken into account under the Guidelines, including his remorse and acceptance of responsibility (see Guidelines at 15) and his satisfactory conduct while incarcerated (see Guidelines at 16–17). Accordingly, to the extent that the defendant relied upon these factors in support of his application for a downward departure, he failed to demonstrate that they constituted mitigating circumstances "of a kind or to a degree not adequately taken into account by the [G]uidelines" ( People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701, seePeople v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 ). The defendant also cited family support as a mitigating circumstance.

The defendant failed to demonstrate that he was entitled to a downward departure due to mitigating circumstances. A number of factors he relied upon had already been taken into account by the SORA guidelines (see SORA: Risk Assessment Guidelines and Commentary [2006]; People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 ). Further, the defendant failed to demonstrate by a preponderance of the evidence that he exhibited an exceptional response to sex offender treatment warranting a downward departure from the presumptive risk level (seePeople v. Santiago, 137 A.D.3d at 764, 26 N.Y.S.3d 339 ; People v. Dyson, 130 A.D.3d 600, 600–601, 10 N.Y.S.3d 885 ; People v. Torres, 124 A.D.3d 744, 746, 998 N.Y.S.2d 464 ; People v. Jackson, 114 A.D.3d 739, 739–740, 980 N.Y.S.2d 152 ). The defendant also failed to demonstrate by a preponderance of the evidence that his age, 43 years old at the time of his SORA hearing, constituted a basis for a downward departure.

Here, the defendant failed to demonstrate that he was entitled to a downward departure due to mitigating circumstances. Although an offender's "advanced age" upon release (Guidelines at 5), exceptional response to sex offender treatment (see People v Santiago, 137 A.D.3d 762, 764), and family support (see People v Davis, 179 A.D.3d 183) may qualify as grounds for a downward departure, the defendant failed to establish the facts in support of these grounds by a preponderance of the evidence (see People v Ralph, 170 A.D.3d 900; People v Sawyer, 169 A.D.3d at 840-841; People v Santiago, 137 A.D.3d 762). The defendant also failed to establish that a licensed social worker's assessment that he was at a low risk for recidivism constituted an appropriate mitigating factor (see generally People v Curry, 158 A.D.3d 52).

The Supreme Court properly denied the defendant's application for a downward departure. Here, the defendant identified as a mitigating factor his response to sex offender treatment, which may provide a basis for a discretionary downward departure if his response to treatment was "exceptional" (Guidelines at 17; seePeople v. Ellison, 197 A.D.3d 1258, 1259, 151 N.Y.S.3d 637 ; People v. Mitchell, 196 A.D.3d 516, 516, 146 N.Y.S.3d 851 ; People v. Rodriguez, 170 A.D.3d 902, 903, 94 N.Y.S.3d 353 ; People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 ). However, the defendant failed to demonstrate by a preponderance of the evidence that his response to treatment was "exceptional" (Guidelines at 17; seePeople v. Ellison, 197 A.D.3d at 1259, 151 N.Y.S.3d 637 ; People v. Mitchell, 196 A.D.3d at 516, 146 N.Y.S.3d 851 ; People v. Rodriguez, 170 A.D.3d at 903, 94 N.Y.S.3d 353 ; People v. Santiago, 137 A.D.3d at 764, 26 N.Y.S.3d 339 ; People v. Dyson, 130 A.D.3d 600, 600–601, 10 N.Y.S.3d 885 ).

The Supreme Court properly denied the defendant's application for a downward departure. Here, the defendant identified as a mitigating factor his response to sex offender treatment, which may provide a basis for a discretionary downward departure if his response to treatment was "exceptional" (Guidelines at 17; see People v Ellison, 197 A.D.3d 1258, 1259; People v Mitchell, 196 A.D.3d 516, 516; People v Rodriguez, 170 A.D.3d 902, 903; People v Santiago, 137 A.D.3d 762, 764). However, the defendant failed to demonstrate by a preponderance of the evidence that his response to treatment was "exceptional" (Guidelines at 17; see People v Ellison, 197 A.D.3d at 1259; People v Mitchell, 196 A.D.3d at 516; People v Rodriguez, 170 A.D.3d at 903; People v Santiago, 137 A.D.3d at 764; People v Dyson, 130 A.D.3d 600, 600-601).

at 803, 79 N.Y.S.3d 232 ; cf. People v. Sotomayer, 143 A.D.3d 686, 687, 38 N.Y.S.3d 271 ; People v. Thompson, 34 A.D.3d 661, 662, 824 N.Y.S.2d 657 ; People v. Abdullah, 31 A.D.3d 515, 516, 818 N.Y.S.2d 267 ). Additionally, although "a response to treatment may qualify as a ground for a downward departure where the response is exceptional" ( People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 ), here, the defendant failed to establish, by a preponderance of the evidence, that his response to treatment was exceptional (seePeople v. Davis, 199 A.D.3d 1030, 1031–1032, 154 N.Y.S.3d 815 ; People v. Santiago, 137 A.D.3d at 764, 26 N.Y.S.3d 339 ). Further, the defendant's close family ties were adequately taken into account by the Guidelines (seePeople v. Adams, 174 A.D.3d 828, 829–830, 102 N.Y.S.3d 688 ).

periods of time during which the defendant has been at liberty after the offense are not taken into account by the Guidelines or the Risk Assessment Instrument (hereinafter RAI)" (People v Sprinkler, 162 A.D.3d 802, 803), the defendant, who had only been at liberty for approximately three years at the time of the SORA hearing, failed to establish by a preponderance of the evidence that this short period of time at liberty without reoffense demonstrated that the RAI overstated his risk of reoffense, or that he has led an exemplary life such that he was entitled to a downward departure from the presumptive risk level (see id. at 803; cf. People v Sotomayer, 143 A.D.3d 686, 687; People v Thompson, 34 A.D.3d 661, 662; People v Abdullah, 31 A.D.3d 515, 516). Additionally, although "a response to treatment may qualify as a ground for a downward departure where the response is exceptional" (People v Santiago, 137 A.D.3d 762, 764), here, the defendant failed to establish, by a preponderance of the evidence, that his response to treatment was exceptional (see People v Davis, 199 A.D.3d 1030, 1031-1032; People v Santiago, 137 A.D.3d at 764). Further, the defendant's close family ties were adequately taken into account by the Guidelines (see People v Adams, 174 A.D.3d 828, 829-830).

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 (see People v Gillotti, 23 N.Y.3d at 861; People v Champagne, 140 A.D.3d 719, 720). In this case, the defendant either failed to establish by a preponderance of the evidence the grounds asserted for a downward departure from his presumptive risk level (see People v Mitchell, 196 A.D.3d 516, 518; People v Nicholson, 195 A.D.3d 758; People v Bigelow, 175 A.D.3d 1443; People v Santiago, 137 A.D.3d 762, 765), or cited factors already taken into account by the Guidelines (see People v Peoples 189 A.D.3d 1282, 1283; People v Rivas, 185 A.D.3d 740, 741; People v Santiago, 137 A.D.3d at 764). Accordingly, the Supreme Court properly denied the defendant's request for a downward departure from his presumptive risk level, and designated him a level two sex offender.

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 (seePeople v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218 ). In this case, the defendant either failed to establish by a preponderance of the evidence the grounds asserted for a downward departure from his presumptive risk level (seePeople v. Mitchell, 196 A.D.3d 516, 518, 146 N.Y.S.3d 851 ; People v. Nicholson, 195 A.D.3d 758, 145 N.Y.S.3d 393 ; People v. Bigelow, 175 A.D.3d 1443, 107 N.Y.S.3d 406 ; People v. Santiago, 137 A.D.3d 762, 765, 26 N.Y.S.3d 339 ), or cited factors already taken into account by the Guidelines (seePeople v. Peoples, 189 A.D.3d 1282, 1283, 137 N.Y.S.3d 381 ; People v. Rivas, 185 A.D.3d 740, 741, 126 N.Y.S.3d 185 ; People v. Santiago, 137 A.D.3d at 764, 26 N.Y.S.3d 339 ). Accordingly, the Supreme Court properly denied the defendant's request for a downward departure from his presumptive risk level, and designated him a level two sex offender.