| People v Baxin |
| 2014 NY Slip Op 02867 [116 AD3d 628] |
| April 29, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Jose Martinez Baxin, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), forrespondent.
Order, Supreme Court, New York County (Thomas Farber, J.), entered August 14,2012, which adjudicated defendant a level two sexually violent offender pursuant to theSex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, withoutcosts.
Although in assessing points under the risk factor for continuing course of sexualmisconduct, the court relied in part on grand jury minutes that were not disclosed todefendant, there was no violation of due process under the circumstances of the case, anda 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 hasnot 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 downwarddeparture to level one (see People v Cintron, 12 NY3d 60, 70 [2009], certdenied sub nom. Knox v New York, 558 US 1011 [2009]; People v Johnson, 11 NY3d416, 418, 421 [2008]). The seriousness of the underlying conduct involving a childoutweighs the factors defendant cites in support of a downward departure.Concur—Gonzalez, P.J., Sweeny, Moskowitz, Richter and Clark, JJ.