People v Mulero, 2024 NY Slip Op 04825 [231 AD3d 447]

October 3, 2024

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Angel Mulero, Appellant.

Twyla Carter, The Legal Aid Society, New York (Robin Richardson of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Jonathan Sclar of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about February 23, 2018, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court’s assessment of 30 points under the risk factor for use of a dangerous instrument was supported by clear and convincing evidence. The grand jury testimony of one of the young victims ( see People v Mingo , 12 NY3d 563 , 573 [2009]), although vague, was sufficient to establish that defendant had threatened her with a sharp metal tool that was “readily capable of causing death or other serious physical injury” during one of the instances of sexual assault ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 8 [2006], quoting Penal Law § 10.00 [13]). The fact that defendant was not indicted for any weapons-related offenses is not dispositive, where there is no indication that any such count was presented to the grand jury.

The court providently exercised its discretion in declining to grant a downward departure ( see People v Gillotti , 23 NY3d 841 , 861 [2014]). The mitigating factors cited by defendant were either adequately taken into account by the risk assessment instrument, or were outweighed by the seriousness of the underlying crime, in which defendant repeatedly raped his girlfriend’s two young daughters over the course of several years. Concur—Kern, J.P., Oing, Kapnick, Kennedy, Shulman, JJ..