NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-845
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527680
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his classification by the Massachusetts Sex
Offender Registry Board (SORB) as a level three sex offender.
Doe argues that SORB lacks subject matter jurisdiction over him
because his New York conviction of forcible touching, N.Y. Penal
Law § 130.52 (McKinney 2015), is not for a "like violation" to
indecent assault and battery, G. L. c. 265, § 13H, so he has not
been convicted of a "sex offense" within the meaning of G. L.
c. 6, § 178C. He further argues that his due process rights
were violated because when he pleaded guilty in New York in
2016, the prosecutor said that he would not have to register as
a sex offender in New York, and he did not receive notice that his conviction would require him to register as a sex offender
in Massachusetts. We affirm.
Background. We summarize the facts as set forth in the
hearing examiner's decision, "supplemented by undisputed facts
from the record." Doe, Sex Offender Registry Bd. No. 10800 v.
Sex Offender Registry Bd., 459 Mass. 603, 606 (2011).
In July 2015, Doe sexually assaulted a thirty-two year old
woman (victim one) in his motel room in South Glens Falls, New
York. Without victim one's consent, Doe touched her vagina with
his fingers and forcibly performed cunnilingus on her.
In August 2015, Doe sexually assaulted a thirty-nine year
old woman (victim two) in the same motel room. Without victim
two's consent, Doe touched her breast and raped her by
penetrating her vagina with his penis. Deoxyribonucleic acid
(DNA) evidence taken from victim two's body matched a sample of
Doe's DNA.
On August 18, 2016, for his sexual assault on victim two,
Doe pleaded guilty to forcible touching in violation of N.Y.
Penal Law § 130.52.1 As to Doe's conduct against victim one, the
parties agreed that those charges were superseded by the
1 For his conduct against victim two, Doe originally had been charged with first-degree rape by forcible compulsion, N.Y. Penal Law § 130.35(01) (McKinney 2001), and second-degree unlawful imprisonment, N.Y. Penal Law § 135.05 (McKinney 1965).
2 conviction for forcible touching upon victim two.2 Doe's plea
was conditioned on the promise that he was not required to
register as a sex offender in New York.
On March 30 and 31, 2017, in New Bedford, Massachusetts,
Doe kept a twenty-four year old woman (victim three) in a house
against her will and solicited money from men who forced her to
perform sexual acts. During one transaction, when victim three
refused to perform oral sex on a man, Doe slapped her face. On
March 31, without victim three's consent, Doe raped her by
putting his penis into her vagina. When police arrested Doe, he
punched an officer in the face. Based on those events, Doe
pleaded guilty to deriving support from prostitution, G. L.
c. 272, § 7; kidnapping, G. L. c. 265, § 26; assault and
battery, G. L. c. 265, § 13A (a); and assault and battery on a
police officer, G. L. c. 265, § 13D.3
In 2020, SORB notified Doe of his duty to register as a
level three sex offender in Massachusetts. After Doe challenged
2 For his conduct against victim one, Doe had originally been charged with first-degree sexual abuse, N.Y. Penal Law § 130.65(01) (McKinney 2011), first-degree criminal sexual act, N.Y. Penal Law § 130.50(01) (McKinney 2003), and third-degree assault, N.Y. Penal Law § 120.00(02) (McKinney 1965).
3 For his conduct against victim three, Doe was also indicted for rape, G. L. c. 265, § 22 (b); trafficking for sexual servitude, G. L. c. 265, § 50 (a); and threatening to commit a crime, G. L. c. 275, § 2. The Commonwealth entered nolle prosequis as to those indictments.
3 his classification, SORB held an evidentiary hearing on December
1, 2021. The hearing examiner considered documentary evidence
including Doe's prior criminal record and prison disciplinary
reports.4 The hearing examiner also considered a July 2021
report by a qualified examiner who opined that Doe was a
sexually dangerous person, based on information including that
Doe scored seven on the Static 99-R test, indicating a "[w]ell
above average" risk of sexual recidivism.
In classifying Doe as a level three sex offender, the
hearing examiner concluded that Doe's conviction for forcible
touching, N.Y. Penal Law § 130.52, was for a "like violation" to
indecent assault and battery, G. L. c. 265, § 13H, and therefore
Doe was required pursuant to G. L. c. 6, § 178C, to register as
a sex offender. In assessing the evidence, the hearing examiner
applied with "increased weight" high-risk factor 2 (repetitive
and compulsive behavior). The hearing examiner found by clear
and convincing evidence that Doe presents a high risk to
reoffend as well as a high degree of dangerousness, and that a
substantial public safety interest is served by Internet
publication of his registry information.
4 Doe's criminal history also included a 2008 Maryland conviction for robbery and a 2016 Rhode Island conviction for selling "crack" cocaine to an undercover officer.
4 Doe filed a Superior Court complaint for judicial review.
On cross motions of the parties, a judge entered judgment on the
pleadings in favor of SORB. Doe appeals.
Discussion. 1. Standard of review. We review de novo a
judge's consideration of an agency decision. See Doe, Sex
Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,
95 Mass. App. Ct. 85, 89 (2019). "A reviewing court will not
disturb SORB's decision unless that decision was (a) in
violation of constitutional provisions; (b) in excess of SORB's
authority; (c) based upon an error of law; (d) made upon
unlawful procedure; (e) unsupported by substantial evidence;
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-845
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527680
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his classification by the Massachusetts Sex
Offender Registry Board (SORB) as a level three sex offender.
Doe argues that SORB lacks subject matter jurisdiction over him
because his New York conviction of forcible touching, N.Y. Penal
Law § 130.52 (McKinney 2015), is not for a "like violation" to
indecent assault and battery, G. L. c. 265, § 13H, so he has not
been convicted of a "sex offense" within the meaning of G. L.
c. 6, § 178C. He further argues that his due process rights
were violated because when he pleaded guilty in New York in
2016, the prosecutor said that he would not have to register as
a sex offender in New York, and he did not receive notice that his conviction would require him to register as a sex offender
in Massachusetts. We affirm.
Background. We summarize the facts as set forth in the
hearing examiner's decision, "supplemented by undisputed facts
from the record." Doe, Sex Offender Registry Bd. No. 10800 v.
Sex Offender Registry Bd., 459 Mass. 603, 606 (2011).
In July 2015, Doe sexually assaulted a thirty-two year old
woman (victim one) in his motel room in South Glens Falls, New
York. Without victim one's consent, Doe touched her vagina with
his fingers and forcibly performed cunnilingus on her.
In August 2015, Doe sexually assaulted a thirty-nine year
old woman (victim two) in the same motel room. Without victim
two's consent, Doe touched her breast and raped her by
penetrating her vagina with his penis. Deoxyribonucleic acid
(DNA) evidence taken from victim two's body matched a sample of
Doe's DNA.
On August 18, 2016, for his sexual assault on victim two,
Doe pleaded guilty to forcible touching in violation of N.Y.
Penal Law § 130.52.1 As to Doe's conduct against victim one, the
parties agreed that those charges were superseded by the
1 For his conduct against victim two, Doe originally had been charged with first-degree rape by forcible compulsion, N.Y. Penal Law § 130.35(01) (McKinney 2001), and second-degree unlawful imprisonment, N.Y. Penal Law § 135.05 (McKinney 1965).
2 conviction for forcible touching upon victim two.2 Doe's plea
was conditioned on the promise that he was not required to
register as a sex offender in New York.
On March 30 and 31, 2017, in New Bedford, Massachusetts,
Doe kept a twenty-four year old woman (victim three) in a house
against her will and solicited money from men who forced her to
perform sexual acts. During one transaction, when victim three
refused to perform oral sex on a man, Doe slapped her face. On
March 31, without victim three's consent, Doe raped her by
putting his penis into her vagina. When police arrested Doe, he
punched an officer in the face. Based on those events, Doe
pleaded guilty to deriving support from prostitution, G. L.
c. 272, § 7; kidnapping, G. L. c. 265, § 26; assault and
battery, G. L. c. 265, § 13A (a); and assault and battery on a
police officer, G. L. c. 265, § 13D.3
In 2020, SORB notified Doe of his duty to register as a
level three sex offender in Massachusetts. After Doe challenged
2 For his conduct against victim one, Doe had originally been charged with first-degree sexual abuse, N.Y. Penal Law § 130.65(01) (McKinney 2011), first-degree criminal sexual act, N.Y. Penal Law § 130.50(01) (McKinney 2003), and third-degree assault, N.Y. Penal Law § 120.00(02) (McKinney 1965).
3 For his conduct against victim three, Doe was also indicted for rape, G. L. c. 265, § 22 (b); trafficking for sexual servitude, G. L. c. 265, § 50 (a); and threatening to commit a crime, G. L. c. 275, § 2. The Commonwealth entered nolle prosequis as to those indictments.
3 his classification, SORB held an evidentiary hearing on December
1, 2021. The hearing examiner considered documentary evidence
including Doe's prior criminal record and prison disciplinary
reports.4 The hearing examiner also considered a July 2021
report by a qualified examiner who opined that Doe was a
sexually dangerous person, based on information including that
Doe scored seven on the Static 99-R test, indicating a "[w]ell
above average" risk of sexual recidivism.
In classifying Doe as a level three sex offender, the
hearing examiner concluded that Doe's conviction for forcible
touching, N.Y. Penal Law § 130.52, was for a "like violation" to
indecent assault and battery, G. L. c. 265, § 13H, and therefore
Doe was required pursuant to G. L. c. 6, § 178C, to register as
a sex offender. In assessing the evidence, the hearing examiner
applied with "increased weight" high-risk factor 2 (repetitive
and compulsive behavior). The hearing examiner found by clear
and convincing evidence that Doe presents a high risk to
reoffend as well as a high degree of dangerousness, and that a
substantial public safety interest is served by Internet
publication of his registry information.
4 Doe's criminal history also included a 2008 Maryland conviction for robbery and a 2016 Rhode Island conviction for selling "crack" cocaine to an undercover officer.
4 Doe filed a Superior Court complaint for judicial review.
On cross motions of the parties, a judge entered judgment on the
pleadings in favor of SORB. Doe appeals.
Discussion. 1. Standard of review. We review de novo a
judge's consideration of an agency decision. See Doe, Sex
Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,
95 Mass. App. Ct. 85, 89 (2019). "A reviewing court will not
disturb SORB's decision unless that decision was (a) in
violation of constitutional provisions; (b) in excess of SORB's
authority; (c) based upon an error of law; (d) made upon
unlawful procedure; (e) unsupported by substantial evidence;
(f) unwarranted by facts found by the court, where the court is
constitutionally required to make independent findings of fact;
or (g) arbitrary or capricious, an abuse of discretion, or
otherwise not in accordance with law." Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 108-109 (2014). See G. L. c. 30A, § 14 (7).
2. "Like violation." Doe argues that SORB lacked
jurisdiction to adjudicate him as a sex offender because the
offense for which he was convicted in New York is not a "like
violation" to a Massachusetts sex offense as defined in G. L.
c. 6, § 178C. See Doe, Sex Offender Registry Bd. No. 151564 v.
Sex Offender Registry Bd., 456 Mass. 612, 615 (2010) (Doe No.
151564). As used in G. L. c. 6, § 178C, "[a] 'like violation'
5 is a conviction in another jurisdiction of an offense of which
the elements are the same or nearly the same as an offense
requiring registration in Massachusetts." Doe No. 151564, supra
at 615. The elements of the other jurisdiction's offense "need
not be precisely the same" as those of the Massachusetts
offense. Commonwealth v. Bell, 83 Mass. App. Ct. 82, 85 (2013).
Having examined the elements of each statute, we conclude
that Doe's New York conviction for forcible touching is for a
like violation to indecent assault and battery. The New York
statute defines the crime of forcible touching as
"intentionally, and for no legitimate purpose . . . forcibly
touch[ing] the sexual or other intimate parts of another person
for the purpose of degrading or abusing such person; or for the
purpose of gratifying the actor's sexual desire." N.Y. Penal
Law § 130.52(1). The Massachusetts offense, indecent assault
and battery, G. L. c. 265, § 13H, has been defined by case law
as "the intentional, unjustified touching of private areas such
as the breasts, abdomen, buttocks, thighs, and pubic area of a
female" (quotation and citation omitted). Commonwealth v.
Becker, 71 Mass. App. Ct. 81, 87, cert. denied, 555 U.S. 933
(2008). "The essence of the New York crime, the unconsented-to
touching of the sexual or other intimate parts of a person for
the purpose of gratifying the sexual desire of [the actor],
comports with the essence of the Massachusetts crime." Id. See
6 Doe No. 151564, 456 Mass. at 616-617 (Maine unlawful sexual
contact statute "like violation" to Massachusetts indecent
assault and battery one, though former required proof of intent
to sexually gratify [or to cause bodily injury or offensive
physical contract] and latter required proof that conduct was
indecent, i.e., "offensive to contemporary moral values").
In arguing that forcible touching is not a "like violation"
to indecent assault and battery, Doe does not contest the
similarity of the elements of the offenses. Rather, he contends
that because his conviction for forcible touching did not
require him to register as a sex offender in New York, it cannot
meet the definition of a sex offense in Massachusetts.5 We are
not persuaded. As explained above, to decide whether an offense
as defined in another jurisdiction constitutes a like violation
to a Massachusetts offense, we compare the elements. Just as
whether a statute treats certain conduct as a felony or
misdemeanor is "not necessarily determinative" of what
constitutes a like violation, see Becker, 71 Mass. App. Ct. at
86, so too, differences in postconviction collateral
5 Under the New York Sex Offender Registration Act as in effect at the time of Doe's sentencing, a person convicted of forcible touching, N.Y. Penal Law § 130.52, was not required to register as a sex offender if, as was the case here, the victim was at least eighteen years old and the offender had not been previously convicted of certain sex offenses. See N.Y. Correct. Law § 168-a(2)(b)-(c), effective Jan. 19, 2016.
7 consequences such as sex offender registration do not determine
whether two criminal statutes are like violations within the
meaning of G. L. c. 6, § 178C.
As for Doe's argument that we should apply the "rule of
lenity," it is unavailing. In Doe No. 151564, 456 Mass. at 618-
619, the court applied that rule in rejecting SORB's argument
that, where an offender was convicted in another State of a
nonsexual crime, it could look beyond the elements of the out-
of-State offense and consider the offender's underlying
behavior. Because, as discussed above, the elements of Doe's
New York offense render it a like violation to indecent assault
and battery, G. L. c. 6, § 178C, was not ambiguous as applied to
Doe.
3. Due process. For the first time on appeal, Doe argues
that his due process rights were violated when SORB initiated
administrative proceedings against him. Doe contends that,
before initiating proceedings, SORB should have held a hearing
to make a preliminary determination whether forcible touching
was a like violation to indecent assault and battery. Putting
aside the question whether Doe waived his due process argument,
we conclude that Doe has not shown prejudice. After SORB
notified him of his duty to register and its preliminary
classification, G. L. c. 6, § 178L (1), Doe exercised his right
to a hearing, G. L. c. 6, § 178L (2), after which the hearing
8 examiner properly determined that forcible touching is a like
violation to indecent assault and battery. See Doe, Sex
Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447
Mass. 768, 776 (2006) ("procedural safeguards entitling most
offenders to a hearing and a determination as to whether
registration is required satisfy procedural due process").
Doe argues that, because G. L. c. 6, § 178E (g), requires
out-of-State sex offenders to register with SORB "within two
days of moving into the [C]ommonwealth," he could have been
unfairly subjected to criminal prosecution for failure to
register as a sex offender, G. L. c. 6, § 178H, shortly after he
moved to Massachusetts in 2017, even though he was told at his
2016 plea that he would not have to register in New York.6 Cf.
Becker, 71 Mass. App. Ct. at 94-96 (Cohen, J., concurring)
(concluding that defendant prosecuted for failure to register
had "ample notice" that New York conviction required
registration, but recommending that statute be clarified).
Doe's argument is unavailing. After Doe's convictions for
6 To the extent that Doe argues that his New York plea was involuntary because he was not informed that he would be required to register as a sex offender in Massachusetts, we do not reach the question. However, we note that in Massachusetts, the failure to inform a defendant of the sex offender registration requirement is not grounds to invalidate a plea. See G. L. c. 6, § 178E (d); Commonwealth v. Shindell, 63 Mass. App. Ct. 503, 505 (2005). New York law appears to be similar. See People v. Gravino, 14 N.Y.3d 546, 550 (2010).
9 offenses in Massachusetts against victim three, SORB notified
him in 2020 that he was required to register as a sex offender
based on his New York conviction for forcible touching. That
was ample notice of the registration requirement.7
Judgment affirmed.
By the Court (Rubin, Massing & Grant, JJ.8),
Clerk
Entered: February 4, 2025.
7 The record before us contains no information that Doe was criminally prosecuted for failure to register as a sex offender, and so we need not reach the question whether such a prosecution in 2017 would have violated due process.
8 The panelists are listed in order of seniority.