AD1 order dated April 29, 2014, affirming SORA adjudication of defendant as a level two offender. Decision below: 116 AD3d 628, 984 NYS2d 63. Court of Appeals granted leave September 18, 2014. Argued September 8, 2015.

ISSUE PRESENTED: Whether the SORA hearing court erred by considering grand jury minutes that it refused to make available to the defense. (Assigned counsel: Julia Busetti & Robert S. Dean, Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10005.)

Background Facts: Mr. Martinez Baxin was charged with instances of sexual misconduct on a few dates in February through April 2001. He ultimately pleaded guilty to one count of sodomy for conduct in February, 2001.

 

As his release neared, a Risk Assessment Instrument (“RAI”) was prepared for his Sex Offender Registration Act (“SORA”) hearing. In support of its recommended risk level, the Board of Examiners of Sex Offenders (“Board”) recommended that points be assessed under Factor 4 of the RAI for a continuing course of sexual conduct involving a single complainant. The Board alleged that these points should be assessed because the offense had occurred on “several” occasions between February and April, 2001. 

 

At the hearing, defense counsel objected that Mr. Martinez Baxin had pleaded guilty to just one count on one date; thus, he could not be assessed points under Factor 4. The court reserved decision, requesting a copy of the grand jury minutes. The People submitted the minutes to the court alone, refusing to turn them over to the defense. Alternatively, they argued that if the court were to give the minutes to the defense, they would have to do so under seal and order non-reproduction or disclosure. Along with the minutes, the People submitted Mr. Martinez Baxin’s video statement in which he admitted to conduct over those three months.

The court assessed the points, expressly relying on the video, the criminal court complaint, and the grand jury minutes in reaching its decision. The defense was never permitted to view the minutes. 

 

Issue: In a SORA proceeding, is it a due process violation to decline to disclose to the defense grand jury minutes on which the court ultimately relies in making a risk-level determination?

 

Held: Agreeing with Mr. Martinez Baxin, the Court held, “the failure to disclose the grand jury minutes was a due process violation” because a “defendant is entitled to broad discovery of the evidence that is used against him in order to be able to defend himself”. In so finding, it looked to cases involving the due process rights of individuals at SORA hearings, as well as the Correction Law mandate that notice of and access to documents relied on by the Board be ensured. Nonetheless, the Court found any due process problem harmless in light of the other pieces of evidence the People submitted to prove Factor 4.

 

CAL Observes: The Court of Appeals threw a bone to the defense in finding a due process violation, and also employed expansive language in finding that the same rationale governing pre-hearing access to documents relied on by the Board also governed with respect to documents the People were relying on to meet their burden of proof. The Court also looked skeptically upon a blanket policy of non-disclosure of grand jury minutes, observing that reasons for keeping minutes secret must be particularized and narrowly tailored. 

 

However, despite noting that it was impossible for a SORA defendant to prepare a defense without access to these minutes, the Court nonetheless imported a harmless error analysis to address the impact of the violation, notwithstanding the impossibility of determining how defense counsel would have made use of the grand jury minutes had she had access to them. 

 

Also of note is that the Court sanctioned making use of means less burdensome to the defense—e.g., disclosing the minutes under seal. With that option available, and the detriment to a defendant of not being able to fully defend against the Board’s recommendations, it is hard to reconcile the Court’s finding of harmlessness with its broad pronouncements in favor of disclosure.