People v Howard

2008 NY Slip Op 05321

Decided on June 10, 2008

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 10, 2008
Lippman, P.J., Williams, Moskowitz, Acosta, JJ.
3896 3897 3932/81 2785/81 393/83






Steven Banks, The Legal Aid Society, New York (Lorca
Morrello of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Jessica
Slutsky of counsel), for respondent.

Orders, Supreme Court, New York County (Arlene Silverman, J.), entered on or about September 12 and October 12, 2006, which respectively, denied defendant's motion to declare unconstitutional the procedures used to determine his risk level pursuant to the Sex Offender Registration Act (Correction Law art 6-C), and adjudicated him a level three sex offender, unanimously affirmed, without costs.

In making its determination, the court properly considered grand jury minutes, which constituted "reliable hearsay evidence" (Correction Law § 168-n[3]). The Confrontation Clause does not apply to these proceedings (People v Dort, 18 AD3d 23, 25 [2005], lv denied 4 NY3d 885 [2005]), and the use of reliable hearsay did not deprive defendant of due process (see People v Mingo, 49 AD3d 148, 152 [2008]). Defendant's arguments concerning unlawful grand jury disclosure (see CPL 190.25[4]; Penal Law § 215.70) are without merit because, in the circumstances presented, the court's acceptance of the minutes sufficed as an order of the court to reveal them (see People ex rel. Ryan v Warden, N. Y. City House of Detention, 113 AD2d 116, 119 [1985]).

The People established, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level three adjudication. Defendant's challenges to the choice of risk factors made by the Legislature and the Board of Examiners of Sex Offenders are both [*2]waived and without merit (see People v Bligen, 33 AD3d 489 [2006]; People v Joe, 26 AD3d 300 [2006], lv denied 7 NY3d 703 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 10, 2008

CLERK