PEOPLE v. MINGO (2012)

Appeal by the defendant from an order of the Supreme Court, Kings County (Mullen, J.), dated October 1, 2009, which, after a hearing upon the remittitur from the Court of Appeals (People v. Mingo, 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983), designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

Contrary to the defendant's contention, clear and convincing evidence supported the Supreme Court's determination that the assessment of 30 points under risk factor one was warranted.   The assessment was based on the “use of violence,” in that the defendant was armed with a dangerous instrument during the commission of the underlying sex offense.   Specifically, the Supreme Court properly relied on, among other things, the victim's grand jury testimony (see People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983;  People v. Carleo, 82 A.D.3d 1067, 918 N.Y.S.2d 795), which demonstrated that the defendant used a chrome metal strip to threaten the victim, as well as to strike her, during the commission of the underlying offense (see People v. Hendrix, 60 A.D.3d 1081, 1082, 876 N.Y.S.2d 154;  see also People v. Kost, 82 A.D.3d 729, 917 N.Y.S.2d 916).   Thus, the Supreme Court properly designated the defendant a level two sex offender.