A Syracuse-area doctor who served 18 months in a Cambodian prison for a sex crime against a minor should be assessed for a sex offender risk level in New York, an appeals court has found.
The Appellate Division, Fourth Department, has reversed a lower court order which found Dr. James D’Agostino was denied due process when he was convicted on hearsay testimony after the 15-year-old boy victim recanted, and that he was convicted even after Cambodian prosecutors determined there was insufficient evidence to show D’Agostino committed the crime with which he was charged.
To the contrary, the Appellate Division panel, in its July 2 decision, found there was credible evidence to support D’Agostino’s conviction and that the crime D’Agostino was convicted of — child prostitution and exploitation — has all of the essential elements of third-degree patronizing a prostitute under New York Penal Law Section 230.04.
The comparable offense is registerable under New York Correction Law Section 168-a  [a] [i] because the victim was less than 17 years old. The statute includes offenses committed in another jurisdiction, Section [d] [i].
“We’re pleased with the decision,” said James P. Maxwell, a chief assistant district attorney in the Onondaga County District Attorney’s Office. “We felt that he should have to register and we’re glad that the Appellate Division agreed and found the way they did.”
Maxwell represented the Board of Examiners of Sex Offenders of the State of New York, which had started proceedings against D’Agostino after learning about his Cambodia conviction and sentence.
The board sought an order that a risk level should be determined for D’Agostino under the Sex Offender Registration Act, but Onondaga County Supreme Court Justice John J. Brunetti, in an order dated April 3, 2014, determined the Cambodian offense was not registerable under the provisions of the act, prompting the board to appeal.
The Appellate Division panel disagreed with Justice Brunetti and sent the case back for a risk level determination, Matter of Board of Examiners of Sex Offenders of the State of New York v. D’Agostino (2015 NY Slip Op 05799).
D’Agostino, who was born in 1954, was represented by Syracuse attorney Stuart J. LaRose, who could not be reached for comment Thursday morning. His options include seeking leave to the state Court of Appeals.
D’Agostino, according to court documents, was convicted in Cambodia of “child prostitution and exploitation” and sentenced to four years in prison in 2011, something he does not dispute, while also acknowledging his conviction was affirmed on appeal, which included a sentence reduction to 18 months.
After D’Agostino returned to New York, the Board of Examiners of Sex Offenders determined the Cambodian offense required him to be classified as a registered sex offender and recommended a level 2 risk assessment, meaning the defendant has a moderate risk of repeating an offense.
Maxwell said he asked for a level 3 risk assessment, which is the highest, meaning there is a high risk of repeat offense and a threat to public safety exists, according to definitions on the state Department of Criminal Justice’s website.
The Appellate Division panel found D’Agostino failed to establish he was denied due process in in a Cambodian Court; that he failed to submit any evidence, other than the sentence reduction, and that he did not show he had or exercised a right to pursue a further appeal when it appeared he had a right to appeal to the Cambodian Supreme Court.
The panel consisted of Justice Nancy E. Smith, presiding, and Justices John V. Centra, Erin M. Peradotto, Rose H. Sconiers and Gerald J. Whalen, who reviewed the undisputed Cambodian Court trial transcripts, provided by the Cambodian government and translated by Interpol.
The panel rejected D’Agostino’s contention he was denied due process because, after the victim recanted, he was convicted on the testimony of a police officer who told the court what the boy had initially told him. The boy admitted he had previously told police he and D’Agostino engaged in sexual activity, but testified at trial that he said that because he had been threatened by police.
The officer denied making threats and teachers from the victim’s school, who were present when the officer spoke to the victim, said no threats were made. Hospital records also supported a determination of sexual abuse, according to the decision.
“Also, despite denying that he engaged in sexual activity with the victim, respondent admitted in his trial testimony that he slept under blankets with the victim and several of the victim’s brothers and that he bathed in a restaurant pool with them,” the panel wrote. “An employee of that restaurant testified that respondent ‘took baths with three children, but [she saw respondent] playing with the penis of only one child.’
“Consequently, there was direct evidence of sexual contact between respondent and the victim, circumstantially corroborating the victim’s initial statement and providing indicia that it was reliable,” the panel found, also noting there was significant evidence, including D’Agostino’s own testimony, that he gave gifts, money and other financial consideration to the victim’s family before and after the sexual activity was alleged to have occurred.
The panel further noted D’Agostino’s due process rights were not violated when the Cambodian Court concluded D’Agostino bribed the witnesses against him so they would not testify, making the earlier statements more reliable.
The state Department of Health, in its own review of the Cambodian records, seriously questioned the validity of D’Agostino’s conviction, but its Hearing Committee found it had no choice but to find him guilty of professional misconduct under Education Law Section 6530 (9)(a)(iii) because there was evidence he had been convicted of a crime that, if committed in New York, would have constituted a crime under New York Law and that D’Agostino offered no mitigating evidence.
D’Agostino was authorized to practice medicine in New York State in July 1992 and had been working at Upstate Medical Center in Syracuse when he went to Cambodia as a volunteer to treat children.
The Cambodian Court also banished D’Agostino from the country upon his release.
At the time the Health Department conducted its hearing, D’Agostino was in prison in Cambodia and not licensed to practice in New York. The Board of Professional Medical Conduct, in its Nov. 2, 2012 decision, ordered D’Agostino’s license to practice in New York be suspended until he returned to New York and offered mitigating evidence.
D’Agostino’s license remains suspended.