PEOPLE v. HOWARD (2008)

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 A.D.3d 23, 25, 792 N.Y.S.2d 236 [2005], lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975 [2005] ), and the use of reliable hearsay did not deprive defendant of due process (see People v. Mingo, 49 A.D.3d 148, 152, 850 N.Y.S.2d 151 [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 A.D.2d 116, 119, 495 N.Y.S.2d 373 [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 waived and without merit (see People v. Bligen, 33 A.D.3d 489, 823 N.Y.S.2d 42 [2006];  People v. Joe, 26 A.D.3d 300, 810 N.Y.S.2d 63 [2006], lv. denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241 [2006] ).