This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 180
The People &c.,
            Respondent,
        v.
Jose Martinez Baxin,
            Appellant.




          Julia Busetti, for appellant.
          Brian R. Pouliot, for respondent.




LIPPMAN, Chief Judge:
          The issue presented by this appeal is whether
defendant's due process rights were violated when the hearing
court relied, in part, upon grand jury minutes that were not
disclosed to the defense in reaching defendant's Sex Offender
Registration Act (SORA) risk level determination.   We hold that

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there was a due process violation, but that, given the
overwhelming evidence which was disclosed to defendant in support
of the same risk factor, the error was harmless.
          Defendant was indicted for six counts of sodomy in the
first degree, six counts of sexual abuse in the first degree and
endangering the welfare of a child, based upon allegations that
he had sexually abused his 10-year-old stepdaughter on at least
three occasions.   The abuse was alleged to have occurred between
February 14, 2001 and February 28, 2001; between March 1, 2001
and March 15, 2001; and on or about April 8, 2001.   In April
2009, defendant pleaded guilty to one count of sodomy, relating
to conduct that had occurred in February 2001, in full
satisfaction of the indictment.
          In contemplation of defendant's release from
incarceration, the Board of Examiners of Sex Offenders (Board)
prepared a case summary and a risk assessment instrument,
assigning defendant 85 points and recommending that he be
adjudicated a level two sexually violent offender.   As pertinent
here, the Board assessed defendant 20 points under risk factor
four for a continuing course of sexual misconduct.   According to
the case summary, "the instant offense occurred from February
2001 to April 2001" and there had been "several" incidents
between defendant and the subject child.
          At his risk level hearing, defendant objected to the
assessment of points for a continuing course of sexual


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misconduct, asserting that he had only pleaded guilty to a single
count of sodomy and that the case summary did not provide the
requisite clear and convincing evidence to support the imposition
of points for that factor.   The court reserved decision, but
requested that the People provide a copy of the grand jury
minutes.
           Following the hearing, the People submitted the grand
jury minutes, as well as a transcript of defendant's videotaped
confession.   The People did not disclose the grand jury minutes
to defendant, however, stating their intention to do so only
under court order.   In the alternative, the People requested that
if the court were to require disclosure, defense counsel be
ordered to keep the minutes under seal and not to reproduce or
disclose them.
           In defendant's confession, he admitted to incidents
occurring in February, March and April of 2001.   Specifically, he
related that he had masturbated in front of the victim on at
least four occasions.   He admitted that, on at least two
occasions, he had the victim put her mouth on his penis.    In
addition, he stated that he had the victim place her hand on his
penis.   The record also contains the criminal court complaint,
which includes the statement related to police by the victim,
"that since the first week of February, 2001, defendant has
masturbated in front of [victim] on several occasions, and [that]
defendant made [victim] place her mouth on defendant's penis on


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three occasions, the last occasion being April 8, 2001."
           At the ensuing court appearance, Supreme Court assessed
defendant 85 points and adjudicated him a level two sexually
violent offender.   The court found sufficient evidence,
consisting of the grand jury minutes, the criminal court
complaint and defendant's confession, to support the imposition
of points for course of sexual misconduct.   The court rejected
defendant's argument that consideration of the grand jury
minutes, which were not disclosed to the defense, should have
been precluded.
           The Appellate Division affirmed, concluding that there
was no due process violation in Supreme Court's reliance, in
part, on the grand jury minutes (see 116 AD3d 628 [1st Dept
2014]).   The Court observed that the grand jury minutes were
cumulative to other evidence that had been disclosed to defendant
and that he had failed to establish prejudice.   This Court
granted defendant leave to appeal (24 NY3d 905 [2014]), and we
now affirm, albeit on a different ground.
           It is well established that sex offenders are entitled
to certain due process protections at their risk level
classification proceedings (see People v Lashway, 25 NY3d 478
[2015]; People v David W., 95 NY2d 130 [2000]; Doe v Pataki, 3 F
Supp 2d 456 [SD NY 1998]).   Doe, for example, recognized that,
although "the due process protections required for a risk level
classification proceeding are not as extensive as those required


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in a plenary criminal or civil trial . . . the consequences of
registration and notification under the Act are sufficiently
serious to warrant more than mere summary process" (Doe, 3 F Supp
2d at 470 [internal quotation marks and citation omitted]).
Accordingly, that court held that in order to satisfy due process
concerns, the offender must be afforded prehearing discovery of
the documentary evidence relating to his or her proposed risk
level adjudication (see Doe, 3 F Supp 2d at 472).
          Likewise, we have observed that "[t]he bedrock of due
process is notice and opportunity to be heard" (David W., 95 NY2d
at 138, citing Mathews v Eldridge, 424 US 319, 333 [1976]).    In
that case, we held that the defendant was not accorded a
meaningful opportunity to contest his SORA risk level where he
was not provided notice that the risk level was being determined
or what materials would be relied on in making the determination,
and was not permitted to raise objections to the State's evidence
against him (see David W., 95 NY2d at 138).   We concluded that
the procedures in place were insufficient to prevent an erroneous
deprivation of the defendant's liberty interest (see David W., 95
NY2d at 138; Mathews, 424 US at 335).
          In keeping with our precedent, the Correction Law
requires that defendant is entitled to prehearing access to the
documents relied upon by the Board in reaching a risk level
recommendation (see Correction Law § 168-n [3]; People v Lashway,
25 NY3d at 483).   Although the statute may not expressly state


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that defendant is likewise entitled to any materials submitted by
the District Attorney in meeting its burden of establishing the
facts supporting a risk level determination by clear and
convincing evidence, the same due process concerns are presented
in that context.   Moreover, broad disclosure is consistent with
Doe's recognition that an offender should be accorded discovery
"of all papers, documents and other material relating to his
proposed level and manner of notification" (3 F Supp 2d at 472).
          Defendant maintains that he was deprived of due process
when the hearing court relied on the grand jury minutes in
determining his risk level without disclosing those minutes to
the defense.   The People raise several arguments in opposition,
pointing out the State's general policy of keeping grand jury
proceedings secret in the absence of a compelling and
particularized need for disclosure and observing that a SORA
defendant does not have the right to confront his or her victim
and thus cannot use the grand jury minutes to attempt to exploit
any prior inconsistent statements.
          The absence of disclosure, however, means that
defendant simply cannot formulate any meaningful argument against
one that the prosecutor postulates is supported by the minutes.
And, while there are good reasons for keeping grand jury minutes
confidential in the abstract, many of the arguments usually put
forth in support of secrecy have much less force in this
postconviction context.   There is no concern that defendant will


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flee, that witnesses will be tampered with or that there will be
interference with the process of the grand jury (see People v
DiNapoli, 27 NY2d 229, 235 [1970]).   The possibility of deterring
future witnesses from providing grand jury testimony may exist,
but is less pressing here, where the possibility of disclosure
arises many years after the indictment and conviction, and where
the testimony is being used as evidence in chief against the
defendant in support of his adjudication as a sex offender.
          Given that defendant is entitled to broad discovery of
the evidence that is used against him in order to be able to
defend himself, we hold that the failure to disclose the grand
jury minutes was a due process violation.   This is not to say
that grand jury minutes must be disclosed to the defendant in
every SORA proceeding as a matter of course.   It remains within
the hearing court's discretion to limit the release of such
minutes (see People v Robinson, 98 NY2d 755, 756 [2002]).
Indeed, as the People had suggested in this matter, defense
counsel can be instructed to keep the minutes under seal.     But,
in determining whether due process requires disclosure, courts
should keep in mind that the use of the minutes against a
defendant for SORA purposes presents a very strong countervailing
interest in support of disclosure.
          The error here, however, was harmless (see e.g. People
v Lashway, 25 NY3d 478, [2015]).   There was overwhelming,
unchallenged evidence in the form of the case summary, the


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criminal court complaint and defendant's own confession, which
provided the requisite clear and convincing evidence supporting
the assessment of points for a course of sexual misconduct and
which had been properly disclosed to defendant.
            Defendant's remaining contention is without merit.
            Accordingly, the order of the Appellate Division should
be affirmed, without costs.
*   *   *     *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order affirmed, without costs. Opinion by Chief Judge Lippman.
Judges Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Decided October 15, 2015




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