We further conclude that the court had the discretion to order a downward departure from its recalculated presumptive risk level (see generally People v Johnson, 120 AD3d 1542, 1542, lv denied 24 NY3d 910). It is well settled that " [a] departure from the presumptive risk level is warranted where there exists an aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the [SORA] guidelines' " (People v Moore, 115 AD3d 1360, 1360-1361; see People v Scott, 111 AD3d 1274, 1275, lv denied 22 NY3d 861). Here, the record establishes that defendant identified an appropriate mitigating factor in favor of a downward departure not adequately accounted for by the SORA guidelines, and that defendant proved by the preponderance of the evidence the facts necessary to support that downward departure from his recalculated presumptive risk level (see Johnson, 120 AD3d at 1542).

According to defendant, the effect of incarceration on him was a mitigating circumstance warranting a downward departure. “A departure from the presumptive risk level is warranted where there exists an aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the guidelines” ( People v. Scott, 111 A.D.3d 1274, 1275, 974 N.Y.S.2d 813,lv. denied22 N.Y.3d 861, 2014 WL 593379 [internal quotation marks omitted] ). In our view, “defendant failed to establish his entitlement to a downward departure from the presumptive risk level inasmuch as he failed to present the requisite clear and convincing evidence of the existence of special circumstances warranting a downward departure” ( People v. Marks, 31 A.D.3d 1142, 1143, 817 N.Y.S.2d 555,lv. denied7 N.Y.3d 715, 826 N.Y.S.2d 181, 859 N.E.2d 921).

(People v. Moss, 22 N.Y.3d 1094, 1095, 982 N.Y.S.2d 55, 5 N.E.3d 26, citing Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3–4 [2006] ). “A departure from the presumptive risk level is warranted where there exists an aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the guidelines” (People v. Scott, 111 A.D.3d 1274, 1275, 974 N.Y.S.2d 813,lv. denied22 N.Y.3d 861, 2014 WL 593379 [internal quotation marks omitted] ). “ ‘There must exist clear and convincing evidence of the existence of special circumstance[s] to warrant an upward or downward departure’ ”