JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 523391
SEX OFFENDER REGISTRY BOARD.
slip opinions and orders are subject to formal revision and
are superseded by the advance sheets and bound volumes of the
Official Reports. If you find a typographical error or other
formal error, please notify the Reporter of Decisions,
Supreme Judicial Court, John Adams Courthouse, 1 Pemberton
Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-103 0;
Heard: October 5, 2018.
action commenced in the Superior Court Department on October
7, 2016. The case was heard by Salim Rodriguez Tabit, J., on
a motion for judgment on the pleadings.
Brandon L. Campbell for the plaintiff.
P. Bosse for the defendant.
Present: Massing, Ditkoff, & Englander, JJ.
plaintiff, John Doe,  appeals from a Superior Court judgment
affirming his final classification by the Sex Offender
Registry Board (SORB) as a level two sex offender. We
conclude that the SORB hearing examiner (examiner) reasonably
considered sufficiently reliable hearsay evidence in the form
of police reports relating to Doe's uncharged sexual
assault of a four year old boy. We conclude that, although
the classification decision must be supported by clear and
convincing evidence, subsidiary facts need be proved only by
a preponderance of the evidence. Applying these standards to
conclude that the examiner properly found by a preponderance
of the evidence that Doe had sexually assaulted the boy, and
that this and other substantial evidence supported the
examiner's decision, we affirm.
November, 2008, police in New Paltz, New York, observed Doe
openly watching pornography on a public library
computer. The officers observed that he was watching
a video recording of a child no more than three years old
performing oral sex on an adult male. The officers found
other video recordings that Doe had downloaded, depicting
girls approximately nine years old engaging in sexual acts.
In February 2009, Doe pleaded guilty to one count of
possessing a recording of a sexual performance by a child,
see N.Y. Penal Law § 263.16.
March 5, 2009, while awaiting sentencing,  Doe and a work
friend decided to get drunk in the friend's apartment.
The friend resided with his girlfriend and her four year old
son, but the girlfriend was not present that evening. At some
point during the evening, Doe spontaneously confessed to his
friend that he had touched the boy. The friend responded that
this could not have happened because the two men were
together all day. Doe repeated his confession and explained
that it had occurred "when he was outside with [the] boy
earlier in the day. "
friend attempted to ask the boy, whereupon Doe forced his way
into the room, and a physical altercation ensued. When the
police arrived, Doe stated, "I shouldn't have
touched the three year old's penis, the female deputy
even told me that," apparently mistaking a male officer
for a female in his intoxication. He then punched and kicked
at the arresting officer and, finally, feigned
unconsciousness when the police tried to interview him.
that day, at the police station, the boy told an officer that
Doe "touched Mr. Winkie." The boy explained that
"Mr. Winkie" was located "under [his]
pants," and the boy's mother confirmed that this was
the boy's term for his penis. Six days after the
incident, during a children's protective services
interview, the boy disclosed that Doe touched his genital
area and that Doe also exposed his penis to the boy. Doe was
charged with sexual abuse of a minor in the first degree, see
N.Y. Penal Law § 130.65, but the charge was ultimately
2014 or early 2015, Doe moved to Massachusetts to live with
his mother and, apparently, registered with SORB. In May
2015, a SORB member recommended that Doe be classified as a
level three sex offender. Doe invoked his right to challenge
the initial classification by claiming a de novo evidentiary
hearing pursuant to G. L. c. 6, § 178L (1) (a.) . In
June 2016, the ...