The People of the State of New York v. Jose A. Hinojosa, Defendant. (2026)

The defendant seeks a downward departure from his presumptive risk level classification under the Sex Offender Registration Act (Correction Law § 168 et seq.). At the defendant's request, the Court granted an adjournment to allow him time to submit legal argument in support of a downward departure. The SORA hearing was held on September 22, 2026. The Court has reviewed the People's proposed Risk Assessment Instrument and supporting letter, as well as the defendant's submissions including his proposed Risk Assessment Instrument and supporting letter, Psychological Evaluation by Dr. Frank W. Isele, Ph.D., dated July 24, 2026, and additional materials. The defendant's application is denied. Upon review of the submitted materials, and after considering oral arguments by counsel on September 22, 2026, pursuant to Correction Law § 168-d, the Court finds the following risk factors have been proven by clear and convincing evidence:

A. Current Offense

1. Use of Violence — Score 0.

2. Sexual Contact with Victim — Score 0.

3. Number of Victims — Three or more — The evidence established that the defendant possessed at least 46 digital images depicting children under the age of 10 years old being sexually assaulted and abused. Specifically, the Grand Jury received a dozen such images clearly depicting more than three different children under the age of 10 years old. See People v. Gillotti, 23 NY3d 841 (2014). Score 30.

4. Duration of Offense Conduct with Victim — Score 0.

5. Age of Victim — 10 or less — As set forth above, the digital images clearly depicted victims well under the age of 10 years old. Score 30.

6. Other Victim Characteristics — Score 0.

7. Relationship with Victim — Stranger — The evidence established that the defendant was not personally acquainted with the children shown in the images. See People v. Gillotti, 23 NY3d 841 (2014). Score 20.

B. Criminal History

8. Age at First Sex Crime — Score 0.

9. Number and nature of prior crimes — Score 0.

10. Recency of prior felony or sex crime — Score 0.

11. Drug or alcohol abuse — History of abuse — According to the defendant, as set forth in the Pre-Sentence Investigation and the Psychological Evaluation, he began consuming alcohol at age 19 (he turned 19 on November 6, 2016), and he continued using alcohol until January of 2023. The defendant reported that, while stationed in California, he had been mixing wine and vodka, which led to episodes of "blacking out." After moving to Tompkins County, New York, he continued drinking, stating he was "boozing kind of hard." This latter period coincides with the defendant's commission of the instant offense on November 28, 2022. The defendant argues that no points should be assessed because he has been sober since January of 2023, however the category is "History of abuse [emphasis added]." As the defendant clearly self-reports an extensive history of alcohol abuse and because the defendant was consuming alcohol during the same period when he committed the instant offense, points are properly assessed. Score 15.

C. Post-Offense Behavior

12. Acceptance of Responsibility — Score 0.

13. Conduct while Confined/Supervised — Score 0.

D. Release Environment

14. Supervision — Score 0.

15. Living/Employment Situation — Score 0.

At a SORA hearing, the People bear the burden of establishing the facts supporting the risk level classification by clear and convincing evidence. Where, as here, a defendant seeks a downward departure from the presumptive risk level, the burden shifts to the defendant to establish, by a preponderance of the evidence, the existence of a mitigating factor not adequately taken into account by the Guidelines and that tends to demonstrate a lower likelihood of re-offense or danger to the community. Even where such a factor is established, the determination whether to depart rests within the Court's sound discretion based upon the totality of the circumstances. People v. Gillotti, 23 NY3d 841 (2014).

The defendant here "defer[s] to a full reading of" Dr. Isele's Psychological Evaluation which was commissioned by the defendant for the purpose of seeking this downward departure. While Dr. Isele claims that the defendant is "negative for nine out of nine" of the New York State SORA mitigating factors for recidivism as outlined in the Board of Examiners of Sex Offenders' position statement regarding the scoring of child pornography cases issued on June 1, 2012, several of the nine factors rely entirely on the defendant's self-interested self-reporting to Dr. Isele, including "Emotional identification with children" and "Reinforcement of deviant sexual arousal to children by masturbation to child pornography." Psychological Evaluation, pp. 17-18.

Further, the Court agrees with the People that while the Psychological Evaluation is quite lengthy, it fails to address the heart of the matter - whether the defendant is likely to re-offend - by side-stepping: (1) the specific actions taken by the defendant in committing this criminal offense; (2) the defendant's insight into his behavior that led to his commission of this offense; and (3) the defendant's acceptance of responsibility for his actions. Instead, the defendant claims he does not remember viewing or possessing the child pornography, thereby avoiding (1) through (3) above. It seems that Dr. Isele does not push back on this claim and even leans into it by stating that, "If Jose did knowing access child pornography, it would have been for approximately six months or less [emphasis added]." Psychological Evaluation, p. 11. This is unnecessary and confusing given that the defendant pled guilty to possession of child pornography several months before the submission of the evaluation. It also reinforces that the defendant has not accepted responsibility for his criminal conduct. It should be noted that an additional assignment of 10 points for not accepting responsibility could have been assessed to the defendant under category 12 of the Risk Assessment Instrument.

This claim of a memory lapse is even more troubling when coupled with the "numerous" traumatic brain injuries described in the Psychological Evaluation:

"[The defendant] describes three incidents in which he sustained injuries to his head, which included periods of unconsciousness, 'kicks to the head,' 'a fall from a 6-ton truck' and being struck in the 'back of the head by a steel pipe.' He also described a time in which he continued on with his duties after injury for hours during which he had no memory of his actions. This amnesia spanned a 3-4 hour time period before he 'went to sleep.' These descriptions suggest moderate to severe TBI." Psychological Evaluation, p. 10.

While the tie between the defendant's "numerous" traumatic brain injuries and the ability to control impulsive sexual behavior was not explored in this evaluation, and while the People here are not seeking an override, it is important to note that a mandatory override to a presumptive Level 3 is warranted where "[t]here has been a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases ability to control impulsive sexual behavior."

The defendant has failed to establish, by a preponderance of the evidence, a mitigating factor not adequately taken into account by the Guidelines, or that the presumptive risk level overstates his risk of re-offense or danger to the community. Even if such factor were established, the Court would, in its discretion, decline to depart. This plea covered a 17-count indictment. The People established that the defendant possessed at least 46 digital images depicting children under the age of 10 years old being sexually assaulted and abused, and the Grand Jury received a dozen such images into evidence. The defendant claims he does not remember committing this offense and therefore has failed to fully accept responsibility for his actions. The application for a downward departure is DENIED. The defendant is classified a Risk Level Two sex offender.

Based upon these findings, the Court hereby certifies that the defendant is a sex offender subject to the New York State Sex Offender Registration Act. Upon review of this record, the Court finds that the Risk Assessment Instrument should be scored as "95," a presumptive Risk Level 2. No need or circumstance exists for a departure from that risk level. Now, therefore, it is hereby:

ORDERED, that the defendant, Jose A. Hinojosa, be designated a Level 2 Sex Offender with no further designation and that the defendant register according to law; and it is further

ORDERED, that a final appearance will be held on October 20, 2026, at 2:30 p.m. The defendant and defense counsel will be permitted to appear virtually if such request is made.

This constitutes the Decision and Order of the Court.

Dated: October 7, 2026

Ithaca, New York

Hon. Scott A. Miller

Tompkins County Court Judge

Scott A. Miller, J.