Opinion
2014-04-29
The PEOPLE of the State of New York, Respondent, v. Jose Martinez BAXIN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Julia Busetti of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Julia Busetti of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
GONZALEZ, P.J., SWEENY, MOSKOWITZ, RICHTER, CLARK, JJ.
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 disclosedto defendant, and defendant has not established that he was prejudiced ( see People v. Frosch, 69 A.D.3d 699, 700, 893 N.Y.S.2d 226 [2d Dept.2010],lv. denied14 N.Y.3d 707, 2010 WL 1286798 [2010] ).
The court properly exercised its discretion in declining to grant a downward departure to level one ( see People v. Cintron, 12 N.Y.3d 60, 70, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009],cert. denied558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009];People v. Johnson, 11 N.Y.3d 416, 418, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ). The seriousness of the underlying conduct involving a child outweighs the factors defendant cites in support of a downward departure.