Doe v. Sex Offender Registry Board

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          Heard: October 5, 2018.

         Civil 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.

          John P. Bosse for the defendant.

          Present: Massing, Ditkoff, & Englander, JJ.

          DITKOFF, J.

         The plaintiff, John Doe, ^[1] 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.

         1. Background.

         In November, 2008, police in New Paltz, New York, observed Doe openly watching pornography on a public library computer.^[2] 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.

         On March 5, 2009, while awaiting sentencing, ^[3] 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. "

         The 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.

         Later 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 nol prossed.^[4]

         In late 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 ...