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Failure to Turn Over to the Defendant Grand Jury Minutes Use by the Judge in SORA Risk Calculation Violated Due Process

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined the failure to turn over to the defendant grand jury minutes used by judge in the Sex Offender Registration Act (SORA) proceedings was a violation of due process. However, in light of the other evidence, the error was harmless. The Court of Appeals explained the application of due process protections to SORA proceedings:

It is well established that sex offenders are entitled to certain due process protections at their risk level classification proceedings (see … 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 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” … . * * *

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]…). Although the statute may not expressly state 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). People v Baxin, 2015 NY Slip Op 07530, CtApp 10-15-14

 

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