EFTA00603264.pdf

No. New Mark auprente Court Appellate Elittisian, 'first £firpttrtutrut THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, v. JEFFREY E. EPSTEIN, Defendant-Appellant. On Appeal from Case No. 31029-2010 APPELLANT'S BRIEF Jay P. Lefkowitz, P.C. [email protected] Sandra Lynn Musumeci [email protected] KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 K&E 443684444182681124 EFTA00603264  Counsel for Defendant-Appellant Jeffrey E. Epstein TABLE OF CONTENTS 2 K&E 443684444182681124 EFTA00603265  TABLE OF AUTHORITIES K&E 4/46844441,8268112,11 EFTA00603266  PRELIMINARY STATEMENT Appellant Jeffrey E. Epstein seeks to vacate the final decision and order of the New York Supreme Court, Criminal Term, New York County, determining him to be a Level 3 sex offender, without designation, under New York's Sexual Offender Registration Act (SORA), Correction Law Article 6-C, based on a 2008 Florida conviction by plea of guilty to Procuring a Person Under 18 for Prostitution, Fla. Stat. § 796.03, and Felony Solicitation of Prostitution, Fla. Stat. 796.07(2)(O, for which Appellant was sentenced to consecutive terms of 12 months and 6 months incarceration, followed by 12 months of Community Control. (Pickholz, J. at SORA hearing). Appellant seeks to vacate the Order because the Court's risk level determination was not supported by clear and convincing evidence, was based on improper considerations, and was made without affording the parties an opportunity to present evidence concerning disputed relevant issues. More specifically, in making its determination, the Court summarily adopted the recommendation of the Board of Examiners of Sex Offenders ("the Board"I, notwithstanding the position of the District Attorney's Office that the Board's recommendation was legally infirm 1 K&E 443684444182681124 EFTA00603267 and not supported by provable evidence. Additionally, the Court issued a facially defective Order that fails to set forth findings of fact and conclusions of law, as required by law. Accordingly, the Order determining Appellant to be a Level 3 sex offender should be vacated, and Appellant's risk level should be recalculated based solely only those factors that may be properly considered under SORA and which are proven by clear and convincing evidence. QUESTIONS PRESENTED 1. May the Court determine Appellant's risk level under SORA based on factors that are not proven by clear and convincing evidence? 2. Is the Court entitled to adopt the Board's recommendation in full, without hearing any further evidence, where Appellant disputes numerous unprosecuted allegations contained therein and the District Attorney, as representative of the State, disclaims the Board's recommendation as unreliable, based on allegations that were determined to be not prosecutable, and not provable by clear and convincing evidence? 3. In calculating Appellant's risk level under SORA, may the Court score points for consensual prostitution-related conduct involving 2 K&E 443684444182681124 EFTA00603268 women who were seventeen years of age or over, particularly where SORA provides that such conduct is only registerable where the person patronized "is in fact less than seventeen years of age," Correction Law § 168-a(2)(a)(i)? 4. Where the Court's Order assigning Appellant a risk level of 3 under SORA does not include any findings of fact or conclusions of law to support a Level 3 determination, must that Order be vacated? STATEMENT OF FACTS Defendant-Appellant Jeffrey E. Epstein is a 58-year old financial advisor and philanthropist whe-keeps-hiewhose primary residence min the U.S. Virgin Islands and who maintains vacation properties in New York, Florida, and New Mexico. See RA. (Letter of M. Weinberg of Aug. 16, 2010).1 Appellant does not live in New York, and since the commission of the Florida offense that forms the basis of this matter, he has not stayed iftat his New York property for periods emeeeilingof ten days, or more at a time. See RA. (Letter of M. Weinberg of Aug. 16, 2010); A. (Tr. 6:21-25, 7:21-8:3412 1 References to the Record on appeal, presented as an Appendix, are denoted herein as "RA." followed by the applicable Appendix page_number. 2 References to the transcript of the January 18, 2011 SORA hearing are denoted herein as 'Pr." followed by the applicable page and line citation. 3 K&E 41268444418268112,11 EFTA00603269 I. The Underlying Offense On June 30, 2008, Appellant pleaded guilty in the Circuit Court for Palm Beach County, Florida under an Information to the charge of Procuring a Person Under 18 for Prostitution, Fla. Stat. § 796.03, an offense which required him to register under Florida's sexual offender registration statute, Fla. Stat. § 943.0435. See RA. (Palm Beach County 31 (Information 08CF9381); R. for Procuring Person Under 18 for Prostitution, tne 26, 2 • A.32 ( milty Plea ef-Jun7, dated June 30, 2008). This single registerable charge was brought in connection with a consensual, commercial arrangement in which Appellant received massages and engaged in sexual conduct with A.D., a young woman who was over the age of consent under New York law but just under 18 when the offense in the Information occurred back in 2005. See RA. (Letter e€from M. Weinberg-of, dated Aug. 16, 2010)2010, at 1, 27a Appellant concurrently pleaded guilty to an Indictment charging him with one count of Felony Solicitation for Prostitution, Fla. Stat. §§ 796.07(2)(0, (4)(c);= a solicitation offense which does not include any elements of sexual contact with underage women and which is not registerable under either Florida or New York 4 K&E 443684444182681124 EFTA00603270 law. See RAP-alpeaeh-GenntyA.26 (2006 Grand Jury Indictment; Spring Torm 2006); R. of Felony Solicitation of Prostitution); At_32 (Guilty Plea of Jun., dated June 30, 2008); Fla. Stat. § 943.0435; Correction Law § 168-a(2)(a). Despite an extensive investigation by Florida prosecutors regarding various other complaints alleged against him and reported in police paperwork, Appellant was never charged with any other crimes or prosecuted on allegations made by any other complainants. See R. (Palm Beach CountyA.26 (2006 Grand Jury Indictment, Spring Torm 2006); R. (Palm Beach County of Felony Solicitation of Prostitution); A.31 (Information 08CF9381); for Pr i urine Person Under 18 for Prostitution, dated June 26, 2008): A. (Tr. 2:23-3:6, 4:19-5:1, 9:16-10:15, 14:14-48718). As a result of his two concurrent Florida convictions -- the first and only criminal convictions of his life -- Appellant was sentenced to consecutive terms of 12 months and 6 months incarceration in a Palm Beach County Detention Facility, followed by 12 months of Community Control supervision. See RA.-32 (Guilty Plea-ef-Jurh, dated June 30, 2008); RA.-34 (Sentence of Jun., dated June 30, 2008). Appellant satisfactorily served 13 months of incarceration (during which time he 5 K&E 443684444182681124 EFTA00603271 was granted permission to participate in the Sheriffs work release program) and completed a subsequent period of 12 months Community Control (during which the Court trusted him, for business purposes, to travel outside of Florida with prior notice and approval by his supervising probation officer) without incident. See RA. (Letter ef-C, Elkinse€from Florida Department of Corrections, dated Jul. 21, 2010); RA. (Letter ef-Famith-effromPalm Beach Sheriffs Offim, dated Aug. 12, 2010); RA. (Letter effrom J. Goldberger—ef,_slated Aug. 12, 2010); RA. (Order enGranting Motion effor Travel, dated Dec. 18, 2009); RA. (Letter &€from M. Weinberg-e€, dated Aug. 16, 2010)2010, at 44L Appellant has had no subsequent instances of misconduct of any kind. See RA. (Letter effrom M. Weinberg-e€, dated Aug. 16, 2010)2010, at II. Sex Offender Registration As required under Florida law in connection with his conviction for Procuring a Person Under 18 for Prostitution, Fla. Stat. § 796.03, Appellant registered as a sex offender with Florida authorities and was designated at the lowest level under that state's sex offender registration act. See A. (Tr. 7:6-151; see also RA. (Letter effrom J. Goldberger 6 K&E 443684444182681124 EFTA00603272 of, dated Aug. 12, 2010); Fla. Stat. §§ 775.21, 943.0435. Appellant also registered in his home jurisdiction of the U.S. Virgin Islands (where Appellant maintains his primary residence and actually lives), where authorities reviewed Appellant's Florida offenses and determined that he is only subject to that jurisdiction's lowest reporting obligations. See A„_(Tr. 7:1-51; see also 14 V.I.C. §§ 1722(6), 1724(d), (e). In order to ensure his full compliance with the federal Sexual Offender Registration and Notification Act (SORNA), 42 U.S.C.A. § 16901 et seq., Appellant also registered as a sex offender in New York and New Mexico, two states where he maintains secondary residences. See is___(Tr. 7:16-8:7,11„ Significantly, New Mexico determined that Appellant is not required to register at all under the state's sex offender registration scheme. See A. (Tr. 7:16-201; see also N.M.S.A. 1978, § 29-11A-3(E). Although he does not actually reside in New York, before the completion of his term of Community Control, Appellant notified the New York State Division of Criminal Justice Services ("the Division") of his registerable Florida conviction and his ownership of a secondary residence in New York. See se±,__ITr. 7:2144241 Since May 2010, Appellant has been registered with the Sexual Offender Monitoring Unit 7 K&E 443684444182681124 EFTA00603273 (SOMU) of the New York Police and SOMU-appitise41-ef-acky-teraperary-trazoiel-he-has-maile-teaw--Yerk. See A. (Tr. 7:21-8:331, III. The Board's Recommendation On or about August 26, 2010, Appellant received notice that a SORA hearing had been scheduled to determine a risk assessment level, accompanied by a copy of the recommendation of the Board-ef-Exam.inefe ef-Sex-Offenders-r-The-13ear-44. See RA. (Letter ef-M,Pr-iee-eff_rom Supreme Court, dated Aug. 26, 2010); itrA (Board Recommendation of Board of Examiners of Sex Offenders (Board Recomrnendationn). In stark contrast to all of the other jurisdictions to have considered Appellant's Florida convictions (including Florida), the Board recommended that Appellant be assigned the highest risk level -- Level 3, representing a high risk of repeat offense -- without further designation.3 See BA. (Letter of M. Price o€from Supreme Courts dated Aug. 26, 2010); BA. (Board Recommendation); see also Correction Law § 168-1(6)(c). 3 SORA requires the Board to recommend an offender's notification level of 1, 2, or 3, pursuant to Correction Law § 168.1(6), and to recommend whether any designations defined in Correction Law § 168-a(7) apply. See Correction Law §§ 168-k(2), 168-n(2). 8 K&E 4136844-3418368113,3 EFTA00603274  The Board's recommendation included a Risk Assessment Instrument (RAI) that improperly calculated a total risk factor score of 130. See RA. (Board Recommendation). Almost all of the points scored by the Board were based on "Current Offense" factors,4 including: 10 points for "Use of Violence" (forcible compulsion); 25 points for "Sexual Contact with Victim" (sexual intercourse and deviate sexual intercourse); 30 points for "Number of Victims" (3 or more); 20 points for "Duration of Offense Conduct with Victim" (continuing course of sexual misconduct); and 20 points for "Age of Victim" (11 through 16). See RA. (Board Recommendation). The Board's RAI did not assign Appellant any points under the "Post-Offense Behavior" and "Release Environment" categories. See RA. (Board Recommendation). In its "Case Summary," the Board noted that Appellant was convicted of just two Florida sex offenses: (1) Procuring a Person Under 18 for Prostitution, and (2) Felony Solicitation of Prostitution.5 See RA. 4 The Board also assessed Appellant 5 points for "Criminal History," even though the Board itself noted that it was assessing points "absent specific information." See RA. (Board Recommendation). Appellant submits that this scoring is unsupported by the record. 5 Only one of these charges -- the procurement charge -- is registerable under SORA, and that charge is registerable under SORA only because it is registerable in Florida. See Correction Law § 168-a(2)(d)(ii). (Notably, the New York cognate of this offense, Promoting Prostitution in the Third Degree, M. § 230.25, is not itself a 9 K&E 44368444418268112,5 EFTA00603275  (Board Recommendation). The Board then aggregated into just over a single page a host of uncharged allegations made by "numerous females," including "female participants [who] were age 18 or older," regarding "massages and unlawful sexual activity" that allegedly took place at Appellant's Florida residence. See RA. (Board Recommendation). The case summary referred to "vaginal intercourse" and various other forms of sexual contact allegedly taking place without connecting specific females to such allegations, and more significantly, without identifying the age of the participants -- some of whom the Board noted were "age 18 or older" -- specifically at the time of such alleged conduct. See BA. (Board Recommendation). Although Appellant was only convicted of two prostitution-related offenses and was neither charged with nor convicted of any rape, sexual abuse, or violent offenses,6 the case summary highlighted hearsay-based claims in police paperwork — namely a registerable offense under SORA. See Correction Law § 168-a(2).) The charge of Felony Solicitation of Prostitution, Fla. Stat. § 796.07(2)(0, (4)(c) -- which does not include any age-related elements and pertains solely to consensual, commercial conduct -- is not a registerable offense under either Florida or New York law. See Fla. Stat. § 943.0435; Correction Law § 168-a(2)(a). 6 The only registerable charge for which Appellant was prosecuted and convicted pertained to consensual, commercial, non-violent interaction with one woman, A.D., who was 17 years old (and therefore over the age of consent in New York but not in Florida) at the time of the relevant conduct. See RA. (Palm Beach County 31 (Information 08GF9384- for Procuring Person Under 18 for 10 K&E 416641-14418268112,6 EFTA00603276 probable cause affidavit signed by a Palm Beach Police detective that did not result in any of the charges sought — involving alleged sexual abuse of underage girls and an alleged forcible rape (which claims were found ricla prosecutor unreliable to support charges against Appellant), and assessed points against Appellant based on these unprosecuted allegations. See RA. (Board Recommendation). The Board recognized Appellant's conduct on Community Control as satisfactory and noted that he has no history of substance abuse. See RA. (Board Recommendation). The Board also credited Appellant with accepting responsibility for his actions. See RA. (Board Recommendation). III. Pre-Hearing Investigation By the District Attorney The SORA hearing, originally scheduled for September 15, 2010, was adjourned on consent of the parties until January 18, 2011 to provide the New York District Attorney ("the People"), which represented the State of New York at the SORA hearing, an opportunity to investigate Appellant's Florida convictions and assess the validity of Prostitution, dated June 26. 2008): Ai_ (Letter effrom M. Weinberg-ef, dated Aug. 16, 2010)2010, at 1, 3); A. (Tr. 10:20-11ga 11 K&E 4.8.943, 1826811ata EFTA00603277 the Board's recommendation. See RA. (Qom*Handwritten Notations on Court Jacket); A. r. 8:22-9:8,8). As part of their investigation, the People were in contact with members of the Palm Beach County State's Attorney's Office to understand the investigation and prosecution of the allegations at issue in this SORA matter. See A. (Tr. 2:14-3:49719). Based on these interactions with Florida prosecutors, the People determined that they weuld-depart-f-remeauld not rely on the Board's recommendation and the underlying probable cause affidavit (which the Florida prosecutors determined not to be reliable, and which therefore certainly could not satisfy the heightened standard of clear and convincing evidence), and would score Appellant based only on the conduct for which he was actually prosecuted, and not based-on all of the unprosecuted allegations in the probable cause affidavit en whiehcited by the BoardIs-reeemmendatien-was-base€1. See A. (Tr. 2:14-3:4949). Although the People presented Appellant a new SORA risk assessment instrument (RAI) immediately before the SORA hearing itself, scoring Appellant as a Level 1, the People apparently did not 12 K&E 443684444182681124 EFTA00603278 present their proposed alternative RAI or any other written submission setting forth their departure from the Board's recommendation to the Court, as no such statement is in the Court's file. See RA. generally. IV. SORA Hearing On January 18, 2011, a SORA hearing was conducted in New York Supreme Court, New York County, Criminal Term, Part 66 before Hon. Ruth Pickholz. See RA. (CaseHandwritten Notations on Court Jacket); A. (Tr. generally). At the hearing, the People made a record that, based on their investigation and contact with the Florida authorities who handled Appellant's prosecution, the probable cause affidavit underlying the Board's recommendation could not be relied upon. See 2:1448718). Specifically, the People informed the Court that many of the women referenced as complainants in the police affidavit were not cooperative with Florida prosecutors, and accordingly, the Florida authorities chose not to prosecute any allegations other than those reflected by the two offenses to which Appellant ultimately pleaded guilty. See A. (Tr. 3:2-6, 14-49711), The People further noted that, in light of Florida's decision not to prosecute the majority of the allegations in the affidavit' land under the SORA statute and guidelines), only the 13 K&E 443684444182681124 EFTA00603279 conduct pertaining to the sole registerable crime for which Appellant was charged and to which he pleaded -- Procuring a Person Under 18 for Prostitution, involving a single complainant -- could be proven and should be considered in evaluating Appellant's SORA score. See A. (Tr. 4:11-16, 4:24-5:4,A Counsel for Appellant corroborated the record made by the People that the Florida Assistant State Attorney who prosecuted Appellant determined, after a full investigation, that there were "no victims" and that the only crime that could be presented to the grand jury was the single solicitation offense to which Appellant pleaded guilty. See A, (Tr. 8:22-9:21, 14:1248718). Appellant disputed many of the allegations contained in the Board's case summary, both with respect to specific facts (such as the abeeneesuagestion of any forcible compulsion and the exact age of complainant A.D. at the time of specific conduct) and more broadly by noting that the Board's recommendation was based on police documentation that was not credible and that contained hearsay allegations that the lead sex crimes prosecutor in Florida decided not to prosecute. See A. (Tr. 9:9-12, 11:13-21, 14:12-4848). Further, Appellant advised the Court that there was sworn testimony from many 14 K&E 443684444182681124 EFTA00603280 of the women referenced in the police paperwork and the Board-'s case summary which expressly disclaimed allegations attributed to them. See A. (Tr. 14:19-23723)t Notwithstanding the clear record that facts underlying the Board's recommendation were disputed, the Court announced that it was relying on the Board's case summary and adopting the Board's calculation and recommendation in full. See A. (Tr. 12:21, 13:6-14:9t The Court did not conduct any factual hearing as to specific claims for which points were assessed. See A. generallyl. The Court scored Appellant for factors such as number of victims, use of violence / forcible compulsion, duration of offense, and sexual intercourse, based on allegations that the People -- as the party bearing the burden of proof -- asserted on the record could not be supported by clear and convincing evidence. See A. (Pr. 13:7-14:941 Despite the legal and factual position of the People that the Board's recommendation could not be relied on and that allegations concerning all complainants but the one in the Information could not be proven, the Court ruled that it was relying on the Board's recommendation in full and adjudicating Appellant a Level 3 sex 15 K&E 443684444182681124 EFTA00603281 offender with no additional designation. See A. (Tr. 12:21, 12:25-13:3,a On the record, the Court recited the scoring of the Board in abbreviated form, without identifying any particular facts or allegations to support each factor. See A. (Tr. 13:6-14:991s In its written Order, the Court indicated a final risk level determination of Level 3 by merely circling a pre-printed form but did not indicate that no additional . See A.-4 (Order efAppealed From, dated Jan. 18, 2011). The Court failed to articulate any findings of fact or conclusions of law, as required under SORA. See RA.-4 (Order ef4pnealed From, dated Jan. 18, 2011); A_ (Tr. generallyl. Appellant was served with a copy of the Court's Order on or about January 19, 2011. See RA. (Letter of F. Halwiek-effrom Supreme Court dated Jan. 19, 2011). Appellant served a Notice of Entry of the Court's Order on February 9, 2011, and on the same day filed a Notice of Appeal to invoke this Court's jurisdiction. See It {A.4((Irder Appealed From, dated Jan. 18, 2011, with Notice of Entry of Fob. 9, 2044); RA.-3 (Appellant's Notice of Appeal-94 dated Feb. 9, 2011). 16 K&E 443684444182681124 EFTA00603282 Appellant now respectfully files this appeal as of right, pursuant to Correction Law §§ 168-k(2), 168-n(2) and CPLR 5513, 5515, to vacate the legally erroneous and factually unsupportable Order and re-calculate Appellant's SORA risk level based solely on those factors that may properly be considered under SORA and that have been proven by clear and convincing evidence.? ARGUMENT The Court's reliance on allegations that were flatly rejected by the Florida prosecutors who investigated them and which, by the People's own admission, could not be proven by clear and convincing evidence, constitutes clear legal error and a violation of Appellant's due process rights, warranting vacatur of the Court's Order. Specifically, the Court calculated a risk assessment score based on untrustworthy double and triple hearsay allegations cited in the Board's recommendation that were squarely rejected as a basis for state prosecution in Florida, were 7 Appellant asks this Court to render its own findings of fact and conclusions of law -- assigning a risk Level 1 -- based on an appropriate consideration of the undisputed facts in the record proven by clear and convincing evidence concerning Appellant's conviction. To the extent this Court is unable to issue findings of fact and conclusions of law based on the present record, Appellant seeks remand in the lower court before a different Justice for a recalculation in which the parties are afforded an opportunity to present evidence regarding contested relevant issues, if necessary. See Section II(B), euppainfra.. 17 K&E 4.9468444418268112,11 EFTA00603283 disputed by Appellant, and did not constitute registerable conduct under New York law, all in violation of SORA and its guidelines and Appellant's constitutionally guaranteed right to due process. Moreover, the Court abused its discretion and failed to abide by the guidelines and mandates set forth in SORA, including by improperly considering factors outside the record and issuing a legally deficient Order that fails to set forth the findings of fact and conclusions of law on which the Court's determination was based and is itself a violation of Appellant's due process rights. I. THE COURTS LEVEL 3 DETERMINATION IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AS REQUIRED BY SORA AND AS A MATTER OF FEDERAL CONSTITUTIONAL LAW. The SORA statute sets forth a formal procedure to determine the required level of notification for those individuals convicted of a qualifying out-of-state offense,8 based on a systematic assessment of the risk of reoffense posed by the particular individual. See Correction Law § 168-k. After the Board generates an initial recommendation based on its 8 Appellant's Florida conviction for Procuring a Person Under 18 for Prostitution is a qualifying "sex offense" offense under SORA solely pursuant to Correction Law § 168-a(2)(d)(ii), which makes an out-of-state offense registerable under SORA if that particular offense is registerable in the jurisdiction where it was committed. 18 K&E 4.8888444418288118,8 EFTA00603284 review of the out-of-state offense and other factors, the Court has the duty of conducting a hearing to consider the Board's recommendation and other evidence presented in order to reach its own independent determination of an offender's SORA registration level. See Correction Law §§ 168-k(2), 168-n(2); People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 382 (2008) (holding that "the Board's duty is to make a recommendation to the sentencing court ... and the court, applying a clear and convincing evidence standard, is to make its determination after considering that recommendation, and any other materials properly before it") (internal statutory citation omitted); see also New York State Bd. of Sex Exam'rs v. Ransom, 249 A.D.2d 891, 891-0292, 672 N.Y.S.2d 185, 185 (4th Dept 1998) (holding the "Board ... serves only in an advisory capacity ... similar to the role served by a probation department in submitting a sentencing recommendation,"); see also People v. Jimenez, 178 Misc. 2d 319, 322-23, 679 N.Y.S.2d 510, 513 (Sup. Ct., Kings County 1998) (observing "the Legislature did not intend to place upon the criminal courts of this State a burden to act merely as a regulatory body to confirm the determination of the Board," and noting that a SORA hearing is a "judicial proceeding in which the court must 19 K&E 443684444182681124 EFTA00603285 make a de novo determination."). Yet the Court's authority to determine a SORA risk level is not unfettered; instead, SORA requires the Court to determine an offender's risk level based on an evaluation of evidence in accordance with the guidelines promulgated by the Board. See Correction Law §§ 168-k(2), 168-n(2) ("It shall be the duty of the court applying the guidelines established [by the Board under SORA] to determine the level of notification...."). Moreover, the Court's determination must be wholly based on facts that are provable by clear and convincing evidence. See Correction Law §§ 168-k(2), 168-n(2). Under New York law, "clear and convincing evidence" is defined as evidence that makes it "!:highly probable' that the alleged activity actually occurred." People v. Dominie, 42 A.D.3d 589, 590, 838 N.Y.S.2d 730, 731 (3d Dept 2007); see also Prince, Richardson on Evidence § 3-205, at 104 (Farrell 11th ed.). Clear and convincing evidence is "a higher, more demanding standard" than the preponderance standard, Rossi v. Hartford Fire Ins. Co., 103 A.D.2d 771, 771, 477 N.Y.S.2d 402, 403 (2d Dept 1984), in that it is evidence "that is neither equivocal nor open to opposing presumptions." Solomon v. State of New York, 146 A.D.2d 439, 440, 541 N.Y.S.2d 384, 385 (1st Dept 1989). Under SORA, the "burden of 20 K&E 443684444182681124 EFTA00603286 proving the facts supporting the determinations sought by clear and convincing evidence" is assigned to the District Attorney, which represents the State in the proceeding. Correction Law §§ 168-k(2), 168-n(2). In the instant case, the Court did not conduct its own inquiry of relevant facts to determine Appellant's risk level in accordance with the SORA guidelines. Instead, as described further below, the Court improperly adopted a Board recommendation that had been rejected by both the People and Appellant as unreliable. Without any meaningful consideration of other evidence, the Court made its risk assessment determination based on allegations that did not -- and indeed could not, as a matter of law -- constitute clear and convincing evidence. Such a determination was made in contravention to SORA and its guidelines and violated Appellant's federal due process rights under the U.S. Constitution. For these reasons, the Court's determination should be vacated. 21 K&E 443684444182681124 EFTA00603287 A. The People's Investigation Revealed That The Board's Recommendation Could Not Be Proven By Clear and Convincing Evidence. The People began the SOR.A hearing by advising the Court that their own investigation and communications with the Florida State Attorney's Office that handled Appellant's case revealed that the majority of allegations in the Board's recommendation (and in the police affidavit on which the recommendation was based9) were not prosecuted by Florida authorities and could not be proven by other evidence. See A. (Tr. 2:14-3:4971A In relevant part, the People made the following record: I tried to reach -- I reached the authorities in Florida to try to see if they had all the interview notes or other things that we can then subsequently rely on that might be considered clear and convincing evidence, if they had 9 It bears noting that the police affidavit upon which the Board based its case summary and recommendation appears not even to have been drafted to sustain charges against Appellant, but instead, recited numerous allegations based on double and triple hearsay directed toward filing charges against a defendant named See 11:—(AiiPalmBeachEalleeDenartmen etause Affidavit of J. Recarey-e&. dated May 1, 2006). Furthermore, the Florida State Attorney expressly rejected the claims asserted in the police affidavit (which sought to charge as an accomplice to Appellant) by determining that there was not sufficient probable cause and not charging Appellant with the serious second-degree felony offenses which the affidavit sought to support, to wit, Unlawful Sexual Activity with a Minor, Fla. Stat. § 794.05(1), and Lewd and Lascivious Molestation, Fla. Stat. § 800.04(5). 22 K&E 44368444418268112,11 EFTA00603288  interviewed these women on their own, and they never did. No one was cooperative and they did not go forward on any of the cases and none of them were indicted. So I don't know. A. (Tr. 4:19-5:- As explained by the People, Appellant's Florida case was not one where a host of allegations were encompassed within a plea deal, but rather, the only charges that were determined to be prosecutable were the charges for which Appellant was ultimately convicted: So it is unlike a situation where everything was indicted and then we get to sort of assess points for all of the victims, if it was part of a plea bargain. They did not actually choose to go forward on any except for the one victim. A. (Tr. 3:2-3:67a Given this history, the People advised the Court that it should depart from the Board's recommendation, both as a matter of fact and as a matter of law, in accordance with the SORA guidelines. See isATr. 2:14-3:19, 4:11-16, 6:10-4-24.21 The SORA guidelines are intended to provide clear guidance to the Court and the parties with respect to how various potential risk factors should be evaluated, including allegations that have not been prosecuted. While, in general, conduct not directly encompassed by the crime of conviction may be considered in scoring for given factors on the 23 K&E 44268444418268112,11 EFTA00603289 RAI, the SORA guidelines deem, "Points should not be assessed for a factor ... unless there is clear and convincing evidence of the existence of that factor." Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Commentary (2006), at 5, ¶ 7 (emphasis added). Indeed, in deciding how to evaluate allegations outside of the crime of conviction, the SORA guidelines expressly caution, "the fact that an offender was arrested or indicted for an offense is not, by itself, evidence that the offense occurred." Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Commentary (2006), at 5, ¶ 7. More to the point here, the guidelines emphasize, "[T]he fact that an offender was not indicted for an offense may be strong evidence that the offense did not occur," amplified with a relevant example: For example, where a defendant is indicted for rape in the first degree on the theory that his victim was less than 11 [years old], but not on the theory that he used forcible compulsion, the Board or court should be reluctant to conclude that the offender's conduct involved forcible compulsion. 24 K&E 443684444182681124 EFTA00603290 Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Commentary (2006), at 5, ¶ 7 (emphasis in original, internal statutory citations omitted ).10 In other words, SORA and its guidelines clearly prescribe that where allegations were reported to and investigated by law enforcement but not prosecuted (and not encompassed within a broader plea bargain), they should not be scored on the RAI or factored into a risk determination in the absence of other evidence to corroborate their validity. See Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Commentary (2006), at 5, ¶ 7; see also People v. Smith, 66 A.D.3d 981, 983, 889 N.Y.S.2d 464, 465-66 (2d Dept 2009) (holding that defendant's alleged use of knife was not proven by clear and convincing evidence and could not be scored against defendant in SORA hearing where testimony about use of knife was presented to grand jury but grand jury did not indict on weapons charge); People v. Coffey, 45 A.D.3d 658, 846 N.Y.S.2d 239 (2d Dept 2007) (holding that it was improper for court to consider allegations concerning a charge that was Of note, at one point during the SORA proceeding, the Court seemingly dismissed out of hand the SORA guidelines concerning uncharged allegations. See 25 K&E 44268444418268112,11 EFTA00603291 dismissed in evaluating defendant's SORA risk level); People v. Arotin, 19 A.D.3d 845, 796 N.Y.S.2d 743 (3d Dept 2005) (holding that defendant could not be scored under SORA for deviate sexual intercourse where defendant was not indicted for such an offense and the only evidence of such conduct came from triple hearsay in a police report used by the Board). Significantly, here, the People did not merely apply the SORA guideline suggesting that uncharged allegations may not be reliable evidence of an offense. Instead, the People had actual information from the Florida State Attorney's Office that the complainants referenced by the Board in connection with uncharged claims were not cooperative with authorities, prompting the Florida State Attorney's Office to decide not to pursue charges in connection with those unsupported allegations. See A. (Tr. 3:14-19, 4:19-5:1, 5:10-1-2A2). Moreover, the People acknowledged that they had no corroborating materials -- such as interview notes, sworn statements, or affidavits -- which would permit them to meet their burden of proving disputed allegations by clear and convincing evidence. See is___ATr. 3:14-19, 4:19-5:1, 5:10-42421 As a A. /Tr. 3:7-13) (Court expressing skepticism toward the Board's guidelines that "if 26 K&E 44368444418268112,11 EFTA00603292 result, the People advanced the position that the law compelled they take -- advising the Court that the Board's recommendation was wrong and that a Level 3 determination was not supported by the provable evidence. B. The Court Improperly Relied on the Board's Recommendation Where the Facts Cited Therein Were Disputed and No Further Evidence Was Presented. Notwithstanding the reasoned, evidence-based disavowal by the People of the Board's recommendation (based on the People's communications with the Florida prosecutor), the SORA Court relied wholesale upon the Board's recommendation. See A. (Tr. 12:21, 13:6-14:941 The Court improperly overlooked the burden of proof statutorily imposed on the People and its own duty to evaluate the evidence, and adopted the Board's recommendation, seemingly as a per se matter. See A. (Tr. 4:11-18) (the Court opining, without factual basis, that the Board "obviously took [their own guidelines] into consideration" when assessing points for uncharged conduct). Indeed, although the Court cited no specific information to suggest that the Board itself communicated with Florida prosecutors in preparing the somebody is not indicted it is strong evidence that it did not occur."). 27 K&E 44368444418268112,11 EFTA00603293 case summary, the Court attempted to justify its blind reliance on the Board's recommendation by stating, "I feel the board looked into all of this, made their recommendation, found him to have 130 points and I see no reason to disturb that." A. (Tr. 15:11-4371a While the Court of Appeals has recognized that a Board-generated case summary may constitute "reliable hearsay" upon which the Court may base a SORA risk calculation, the law is equally clear that a Board's case summary is not per se reliable, particularly in the face of countervailing evidence. See People v. Mingo, 12 N.Y.3d 563, 5724373, 883 N.Y.S.2d 154, (2009) ("Of course, information found in a case summary ... need not always be credited -- it may be rejected when it is unduly speculative or its accuracy is undermined by other more compelling evidence"); see also People v. Mabee, 69 A.D.3d 820, 893 N.Y.S.2d 585 (2d Dept 2010) (finding Board's case summary did not constitute clear and convincing evidence to support scoring under SORA where it provided only very limited information pertaining to the particular factor). Indeed, information contained in a Board's case summary does not by itself clear the hurdle of "clear and convincing evidence" -- a higher standard than mere "reliable evidence" -- where the 28 K&E 443684444182681124 EFTA00603294 offender disputes the relevant contents of that evidence. See People v. Judson, 50 A.D.3d 1242, 855 N.Y.S.2d 694 (3d Dept 2008) (holding that case summary alone could not satisfy state's burden of proving factors by clear and convincing evidence to support level 3 determination where defendant contested certain factual allegations related to those factors); cf. People v. Wasley, 73 A.D.3d 1400, 1401, 902 N.Y.S.2d 686, 687 (3d Dept 2010) (holding "evidence included in the case summary may provide clear and convincing evidence in determining a defendant's risk assessment level where defendant did not dispute its contents insofar as relevant.") (emphasis added); People v. Curthoys, 77 A.D.3d 1215, 1216, 909 N.Y.S.2d 824, 826 (3d Dept 2010) (noting that the "uncontested contents of a case summary can satisfy the People's burden of demonstrating clear and convincing evidence") (emphasis added). Thus, it certainly follows that a Board's case summary cannot, as a matter of law, constitute the sole requisite "clear and convincing evidence" required to support a SORA determination where the People, as the party representing the Board, also expressly disclaim the reliability of that case summary. 29 K&E 443684444182681124 EFTA00603295  Here, the Board's case summary was based almost entirely on double and triple hearsay allegations described in an affidavit submitted by police to the Florida prosecutor. See RA. (Board Recommendation); R—~A.6 (Palm Beach Police Affidavit of J. Recarey-e€ dated May 1, 2006). The allegations, even when aggregated, were not deemed by the Florida prosecutor who reviewed them to constitute sufficient "probable cause" to warrant the return of a complaint, information, or indictment as to any of the charges that the affidavit sought.11 And, of course, because the requested charges were never brought, no court ever reviewed or authorized the affidavit's allegations to make a judicial finding of "probable cause" as to any such allegations. Even had the Florida prosecutor decided to arrest and charge Appellant based on allegations contained in the affidavit, the mere fact of an arrest or charge is not sufficiently trustworthy by itself to support the assessment of points against Appellant under SORA. See Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Commentary (2006), at 5, ¶ 7 ("the fact that an offender 11 Although the affidavit considered by the Board was submitted with respect to a defendant other than Appellant, it appears that the allegations in the affidavit were intended to establish probable cause to charge Appellant with Unlawful Sexual 30 K&E 44368444418268112,11 EFTA00603296 was arrested or indicted for an offense is not, by itself, evidence that the offense occurred"). Such allegations cannot be deemed reliable -- never mind satisfying the elevated standard of clear and convincing evidence -- where, as here, the People had specific information from the Florida prosecutor that Florida made the decision not to pursue such charges based precisely on the insufficiency of the evidence. See A. (Tr. 2:23-3:19, 4:19-5:4,A In short, the People directly disputed the reliability of the Board's case summary and recommendation, based on information that was not before the Board following communications with the Florida prosecutor. See A. (Tr. 2:14-3:19, 4:11-6:121; see also RA. (Board Recommendation) (noting that Board's assessment was based on review of "inmate's file" and not citing specific contact with Florida authorities). Appellant also disputed the validity of many of the allegations contained therein, both generally and with regard to specific allegations. See A. (Tr. 9:9-12, 11:13-21, 14:12-48718). Notwithstanding the obvious existence of disputed relevant issues, the Court did not provide the Activity with a Minor, Fla. Stat. § 794.05(1), and Lewd and Lascivious Molestation, Fla. Stat. § 800.04(5) -- charges that were never brought. 31 K&E 44368444418268112,11 EFTA00603297 parties with any opportunity to present evidence on contested issues, nor did the Court conduct any factual inquiry on its own. Even though there was no sufficient evidentiary basis to support the Board's recommendation, the Court announced that it was relying on the Board's case summary and adopting the Board's calculation and SORA determination in full. See A. (Tr. 12:21, 15:1143713). Indeed, at one point in adopting the Board's scoring, the Court openly acknowledged that it was assessing points against Appellant in the face of the People's position that the evidence of that factor was "not reliable": Number of victims, three or more. He only plead guilty to one, but apparently there were more than one and I think the People concede that although th