John Doe, Sex Offender Registry Board No. 527680 v. Sex Offender Registry Board.

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).

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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.

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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'

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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.

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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

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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.

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