People v. Baxin

Order, Supreme Court, New York County (Thomas Farber, J.), entered August 14, 2012, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs. Although in assessing points under the risk factor for continuing course of sexual misconduct, the court relied in part on grand jury minutes that were not disclosed to defendant, there was no violation of due process under the circumstances of the case, and a new hearing is not required. The grand jury minutes were cumulative to other evidence, establishing the same risk factor, that was fully disclosed to defendant, and defendant has not established that he was prejudiced (see People v Frosch, 69 AD3d 699, 700 [2d Dept 2010], lv denied 14 NY3d 707 [2010]). The court properly exercised its discretion in declining to grant a downward departure to level one (see People v Cintron, 12 NY3d 60, 70 [2009], cert denied sub nom. Knox v New York, 558 US 1011 [2009]; People v Johnson, 11 NY3d 416, 418, 421 629 [2008]). The seriousness of the underlying conduct involving a child outweighs the factors defendant cites in support of a downward departure. Concur — Gonzalez, EJ., Sweeny, Moskowitz, Richter and Clark, JJ.