EFTA01177413.pdf

Pursuant to Civil Rights Law § 50-b, the identities of the victims, who are the victims of sex offenses, shall be confidential, and this document shall not be made available for public inspection. To be argued DEBORAH L MORSE Petu Pork i§uprente Court Appellate Division - First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - JEFFREY E. EPSTEIN Dcfendant-Appellant. BRIEF FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 (212) 335-9000 danyappeals®dany.nyc.gov GINA MIGNOLA DEBORAH L MORSE ASSISTANT DISTRICT ATTORNEYS Of Counsel EFTA01177413  TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii INTRODUCTION 1 POINT THE SORA COURT'S DESIGNATION OF DEFENDANT AS A LEVEL-THREE OFFENDER WAS SUPPORTED OVERWHELMINGLY BY THE RECORD. THE PROCESS BY WHICH THE COURT REACHED AND DELIVERED THAT DETERMINATION WAS ENTIRELY FAIR AND PROPER 33 CONCLUSION 63 EFTA01177414  TABLE OF AUTHORITIES CASES Contrast People v. Ferguson, 53 A.D.3d 571 (2d Dept. 2008) 57 People v. Belter, 84 A.D.3d 905 (2d Dept. 2011) 58 People v. Brensic, 70 N.Y.2d 9 (1987) 43 People v. Conway, 47 A.D.3d 492 (1st Dept. 2008) 36 People v. Guaman, 8 A.D.3d 545 (2d Dept. 2004) 35 People v. Johnson, 77 A.D.3d 548 (1st Dept. 2010) 38, 49 People v. Kello, 96 N.Y.2d 740 (2001) 39 People v. Knox, 12 N.Y.3d 60 (2009) 36 People v. Mendez, 45 A.D.3d 429 (1st Dept. 2007) 36 People v. Mingo, 12 N.Y.3d 563 (2009) 36-37, 40 People v. O'Neal, 35 A.D.3d 302 (1st Dept. 2006) 36 People v. Pettigrew, 14 N.Y.3d 406 (2010) 36 People v. Roland, 292 A.D.2d 271 (1st Dept. 2002) 38 People v. Smith, 75 A.D.3d 1112 (4th Dept. 2010) 58 People v. Vasquez, 20 Misc.3d 37 (App. Term 1st Dept. 2008) 37 People v. Windham 10 N.Y.3d 801 (2008) 36, 38 STATUTES Corrections Law § 168-1 29, 35 Correction Law § 168-n(3) 36, 58 Correction Law § 169-8(3) 36 Fla. Stat 796.03 1 EFTA01177415 Ha. Stat. 796.07 1 EFTA01177416 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JEFFREY EPSTEIN, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION Defendant, Jeffrey Epstein, appeals from an order of the Supreme Court, New York County (Ruth Pickholz, J.), entered on January 18, 2011, adjudicating him a level-three sex offender pursuant to the Sex Offender Registration Act ("SORA"). By the underlying judgment, defendant was convicted in Palm Beach County, Florida, by his plea of guilty, of Procuring a Person Under 18 for Prostitution (Fla. Stat. 796.03) and Felony Solicitation of Prostitution (Fla. Stat 796.07). On June 30, 2008, defendant was sentenced to serve consecutive jail terms of 12 months and 6 months, to be followed by a 12-month term of Community Control. Defendant has completed his sentence. EFTA01177417  Apart from various other residential properties, defendant maintains homes both in Palm Beach, Florida, and on the Upper East Side of Manhattan. The SORA risk-level designation that defendant received in New York is the subject of this appeal. The criminal conduct underlying the SORA designation occurred in defendant's Palm Beach home. On March 15, 2005, a 14-year-old girl and her family made a report to the Palm Beach Police Department about sexual misconduct committed against her by then 51- year-old defendant. For almost a year—from March 2005 to February 2006—the Palm Beach Police Department conducted an extensive investigation of defendant and two accomplices who had helped him lure young girls to the seclusion of his home. On May 1, 2006, a Palm Beach detective swore out a 22-page probable-cause affidavit detailing the results of dozens of police interviews as well as the first-hand observations of Palm Beach detectives. Among other things, the investigation revealed that defendant had been paying young girls—many from Royal Palm Beach High School who were 16 years of age or less—to come to his home and give him a massage as he lay naked, masturbated, and engaged in sexual contact with them. The sexual contact during these "massages" included vaginal intercourse, mouth to vagina sodomy, touching of the girl's breasts and vagina, placing his fingers inside the girl's vagina, and using a vibrator on the girl's vaginal area—always as he masturbated to climax. During certain time periods, defendant was receiving these "massages" two or three times a day. The girls were -2- EFTA01177418 paid anywhere from $200 to $1,000 per massage, depending upon the nature of the sexual contact that they permitted. In July of 2006, five months after the investigation had concluded, the Palm Beach County State's Attorney's Office obtained an indictment charging defendant with one count of Felony Solicitation of Prostitution. Defendant was taken into custody. Almost two years later, on June 26, 2008, the State's Attorney's Office filed an information charging defendant with an additional crime—namely, Procuring a Person Under 18 For Prostitution. Four days later, on June 30, 2008, defendant pleaded guilty to both accusatory instruments—namely, one count each of Procuring a Person Under 18 for Prostitution and Felony Solicitation of Prostitution. That same day, defendant was sentenced to serve consecutive jail terms of 12 months and 6 months, to be followed by a 12-month term of Community Control. Because one of the crimes required that defendant register in Florida as a sex- offender, the fact that he also maintained a residence in Manhattan meant that he had to register in New York State as a sex offender as well. Following an investigation, the State of New York Board of Examiners of Sex Offenders ("The Board') recommended that, on the three-tier SORA classification scale, defendant be classified as a level-three sex offender. The Board reached that conclusion after having calculated defendant's risk assessment score at 130—solidly above the 110 qualifying number for level three. -3- EFTA01177419  On January 18, 2011, after having received the appropriate notice months earlier, two attorneys—the ones who are representing defendant on appeal— appeared before Justice Ruth Pickholz on defendant's behalf for a hearing to determine defendant's risk level; defendant chose not to attend the proceedings. At the hearing, defendant urged that a proper application of the SORA guidelines to his conduct warranted a level-one classification. Apparently misapprehending the governing legal standards, the People expressed concern about assessing points against defendant on the basis of the victim-accounts detailed in the probable-cause affidavit; the People seem to have based that position largely on the mistaken notion that only sexual conduct for which defendant had been formally charged could be considered when calculating his risk-assessment score. After hearing argument from both parties, and reviewing all the materials that had been submitted, the court adopted the recommendation made by the SORA Board and found defendant to be a level-three sex offender. On appeal, defendant contends that he was incorrectly classified a level-three offender and should have been classified a level-one offender instead. More particularly, defendant contends that the level-three designation lacked the support of clear and convincing evidence, and was based instead on improper considerations. Defendant further complains that the court rendered its ruling without affording the parties an opportunity to present evidence on disputed issues, and issued an order that -4- EFTA01177420 lacked the requisite findings and conclusions. THE MATERIALS PROVIDED TO THE SORA COURT The Florida Probable-Cause Affidavit Among the materials provided to the SORA court was the probable-cause affidavit prepared by detectives of the Palm Beach Police Department (A6-27). This 22-page document, sworn to by a detective, outlined the findings of a "sexual battery" investigation beginning on March 15, 2005, and extending through February of 2006 (A6).' The numerous interviews conducted by the Palm Beach Police produced sworn, tape-recorded statements from what the police denominated as five victims and seventeen witnesses. The statements concerned "massages" provided to defendant by high school girls in exchange for money, and "other unlawful sexual activity" by defendant involving those young girls, in defendant's Palm Beach home (A6). Defendant was 51 years of age at the time of four of the specified criminal incidents, and 52 years of age at the time of the fifth (A27). The affidavit revealed that defendant had set up, and maintained, a highly organized operation to satisfy his compulsive need for young girls. Most of the victims were students at Royal Palm Beach High School (A6). And, defendant had Parenthetical numerical references preceded by "A" are to the pages of Defendant's Appendix. -5- EFTA01177421 maintained a steady and orderly stream of these girls with the aid of various employees. For the equivalent of a finder's fee, a student at Royal Palm Beach High School, recruited classmates to perform these so-called "massages." defendant's adult assistant, regularly was present at defendant's house at the time of the massages, recorded the girls' names and contact information for future reference, and set up appointments for the girls to come to the house at regular intervals on each day that defendant was in town (A6). The affidavit further revealed that most of the "massage" sessions themselves followed a regular routine. Upon arrival at defendant's house, the victim was escorted to defendant's bedroom, where defendant entered the room wearing nothing but a towel and instructed the girl to remove her clothes as well (A6). As the girl provided the massage in some state of undress, which usually consisted of only panties, defendant subjected her to some sort of sexual contact—including rubbing her vagina with his fingers or a vibrator, or inserting his penis or fingers into her vagina (A6). At the conclusion of the massage, the girls were given cash in sums ranging from $200 to $1,000, depending upon the extent of the sexual contact (A6). More particularly, the affidavit related the following specific accounts: The Statements By Girls Who Had Provided "Massages" During an interview that was sworn and tape-recorded, 14-year-old ■, a student at Royal Palm Beach High School, reported to detectives that had -6- EFTA01177422 offered her an opportunity to make money, and then had picked her up at home and driven her to defendant's house (A6-7). The two entered the house through the kitchen door, and were met shortly afterwards by defendant and Ai). escorted up a flight of stairs, past walls lined with photographs, to a room containing a massage table and a "hot-pink and green" sofa (AD. There was a mural of a naked woman in the room, and on a shelf there were several photographs of naked women (A7). -7- EFTA01177423 (A8). As they left the house, said that she had received $200 for having brought to defendant's house that day (A8). In a statement that was sworn and tape-recorded, reported that she was 16 years of age when asked if she wanted to "make money for Christmas"; she agreed (A23). ■drove to defendant's house, where a white woman with long blond hair led her up a spiral staircase to a bedroom containing a massage table; there was a steam room and shower in the bathroom next door (A23). The woman said that massage oils would be there, and that defendant would select the one he wanted (A23). Defendant was wearing only a towel, and he selected the oils that he wanted to use (A23-24). -8- EFTA01177424  During a statement that was sworn and tape-recorded, reported that, at 16 years of age, in September of 2004, had offered her a chance to make money (A13). From conversations with friends at Royal Palm Beach High School, ■ knew "what did for [defendant]," and■ agreed (A13). drove to defendant's house, where they entered through the kitchen and met defendant (A13). escorted upstairs—past many photographs of naked girls—to a -9- EFTA01177425 received $200 in cash, and gave her telephone number to on the way out of the house (A14). did not provide a massage for defendant on any other occasion, but she accompanied to defendant's house on two occasions when brought other girls there (A14). One of those girls was' friend, who was sixteen years of age (A14). The time they took the three entered the house through the kitchen, where they were met by (A14). and both escorted to the upstairs bedroom, and later gave $100 for having brought to defendant's house (A14). During a statement that was sworn and tape-recorded, eported that, at the suggestion of a classmate at Royal Palm Beach High School, she had given defendant massages at his house when she was 16 years of age (A16). On the first visit, the classmate took her to defendant's house, where they entered through the kitchen and were met by (A16). As led her upstairs, saw that, on the wall and on tables, there were photographs of naked women (A16). Once in the bedroom, set up a massage table and oils, and shortly afterwards defendant emerged from a steam room and shower area wearing only a towel (A16). Defendant -10- EFTA01177426 (A16). was given $200 that day, and defendant asked her to leave her cell phone number so he could contact her "when [he] was in town" (A16). returned to defendant's home "hundreds of times" over the course of the next two years to provide these massages; she became defendant's "number one girl" (A16). Every time defendant was in Palm Beach, called and scheduled appointments for to "work" for defendant (A17). A "routine" was established— At some point, "things escalated" during the massage sessions: at defendant's (A17). Defendant sometimes photographed the naked sex sessions between and and he displayed the photographs in his home (A17). -11- EFTA01177427  Things "continued to escalate," and received additional money whenever something new was introduced into the routine (A17). had an "understanding" with defendant, however, that he would not penetrate her vagina with his penis (A17). Defendant's penis was "deformed"—when erect, it was "thick" toward the base, but "thin and small" toward the head; it was shaped like an "egg" or an "oval" (A17). During one massage, Wand kissed and fondled each other's breasts as "screamed," "No!" and defendant stopped (A17). Defendant apologized and gave her $1,000 that day (A17).2 During a statement that was sworn and tape-recorded, related that, at 15 years of age, she was approached by a classmate at Royal Palm Beach High School and asked about modeling lingerie at the home of a wealthy Palm Beach man (A24-25). When they arrived at defendant's home,■ and were served dinner by defendant's personal chef (A25). After dinner, defendant and took ■to an upstairs bedroom, where there was a massage table (A25). When defendant s e a. to • earresung o icer i a s e a in orma on a ou sexu ac • vi a e en ant's house (A15-16). As noted on pages 26-27, infra, the police subsequently found name and cell phone number on discarded papers that were retrieved from defendant's trash (A16), and recovered a copy of her high school transcript from defendant's bedroom desk (A23). -12- EFTA01177428 entered wearing only a towel, said she and were going to give defendant a massage (A25). asked why they were doing that instead of modeling, and Miller said it was defendant's "routine" (A25). undressed at defendant's direction, until Defendant paid $200 (A25). He said that "bad things could happen" if she told anyone what had taken place in his house (A25). Defendant's "houseman" drove and home, and ■was afraid about the fact that defendant knew where she lived (A25). When called her several days later to set up another appointment for "work," ■ agreed (A25). Once at defendant's house, escorted to the bedroom and prepared the room for the massage (A25). was paid $200, and defendant threatened her again— saying that "bad things would happen" if she talked about what had happened (A25). wanted to notify the authorities but was afraid of what might happen to her or her family (A25). -13- EFTA01177429  In a statement that was sworn and tape-recorded,M related that she was 16 years of age when a fellow student at Royal Palm Beach High School said could make $200 by providing massages to defendant while topless (A21-22). Entering the house through the kitchen, was escorted upstairs to a bedroom that had a massage table and a large pink couch (A22). Defendant entered the room wearing only a towel, lay face-down on the table, and selected the oils to be used (A22). was given $200 for that massage (A22). During a return visit, again was led to the upstairs bedroom, and defendant entered wearing only a towel (A22). At defendant's direction, that point, and received $200 that day (A22). did not provide any more massages (A22). During a tape-recorded statement, related that, when she was sixteen years of age, her classmate took her to defendant's house on two occasions (A11). -14- EFTA01177430 The first time, drove, they entered through the kitchen door, and they were met there by defendant and (A11-12). escorted her to a bedroom, where set up a massage table and oils, and entered the room wearing only a towel (Al2). Defendant lay on the table, selected an oil for, to use, and she began the massage (Al2). When defendant tried to remove■ shirt, she became upset and discontinued the massage (Al2). ■ left the house and did not receive any money (Al2). had told her to tell defendant if she was "uncomfortable" and defendant would "stop" (Al2). ■ also knew that "the more you do, the more you get paid" (Al2). Several weeks later,1 agreed to return to defendant's house with (Al2). Again they entered through the kitchen was escorted upstairs by and set up the massage table and oils (Al2). During the massage, defendant Defendant gave her $200 that day, and. did not return (Al2). During a statement that was sworn and tape-recorded, a student whose birthdate reported having been approached by and offered wa: money to provide a "massage" to "a wealthy man in Palm Beach" (Al2). drove the girl to defendant's house, where they entered through the kitchen and met -15- EFTA01177431 defendant and (Al2). took the girl upstairs to a bedroom, where= During a statement that was sworn and tape-recorded, a girl whose birthdate wa related that she had been told she could make some "quick money" by providing a massage while dressed only in underwear (A18). The girl was driven to defendant's home, where she and the other girl entered through the kitchen door and went to an upstairs bedroom, where there was a massage table near a sauna/shower area and photographs of naked women throughout the room (A18). Defendant -16- EFTA01177432 At defendant's instruction, the recruiter left the room and the new girl finished the massage alone (A18). The girl was given $200 for the massage, and the recruiter girl was given $200 for having brought the girl to defendant (A18). subsequently called and asked the girl to return for some additional "work," as called it; the girl said she was not comfortable providing "that type of work" (A18). During a statement that was sworn and tape-recorded, a Royal Palm Beach High School student whose birthdate was reported having been approached by to provide a massage for defendant in exchange for $200 in cash (A19). made the arrangements but was unable to take the girl, so someone else drove the girl there (A19). Entering the house through the kitchen door, the girl met with as well as another "assistant," (A19). As escorted her upstairs, the girl noticed a number of photographs of naked girls throughout the house (A19). -17- EFTA01177433  On two occasions, the girl brought a classmate to defendant's ome to per orm a massage, and the girl received $200 for each one she brought (A20). In a statement that was sworn and tape-recorded, a girl whose birthdate was elated having been approached by and asked about making money for providing massages to defendant (A20). The girl agreed, and drove her to defendant's home, where they were met by defendant and (A20). took the girl upstairs and then left the room (A20). Defendant entered wearing only a towel, and lay on his stomach as the girl, wearing only panties, rubbed his back (A20). Defendant masturbated until he ejaculated (A20). The girl "felt the whole situation was weird"; but she was paid $200, so she returned (A20). was paid $200 for having brought the girl to defendant's house (A20). -18- EFTA01177434  During subsequent massages, defendant grabbed the girl's breasts and fondled them (A20). On one occasion, when she was 17 years of age, defendant paid her extra to have vaginal intercourse, and she agreed (A20). As the girl lay on the massage table, defendant penetrated her vagina with his penis, withdrawing to ejaculate onto the table (A20). Defendant gave the girl $350 for that massage (A20). On a different occasion, defendant had his girlfriend and the girl kiss and fondle each other's breasts and buttocks as he watched and masturbated (A20). On yet other occasions, defendant used a large, white vibrator on the girl's vagina as she massaged him (A20). Defendant masturbated during every massage (A20). During a statement that was sworn and tape-recorded, a Royal Palm Beach High School student whose birthdate was related that, at 17 years of age, she went with to defendant's house (A10-11). Entering the house through the kitchen, the girl was escorted upstairs by (A10-11). Defendant entered the bedroom wearing only a towel, but she remain clothed (A11). At one point during the massage, defendant grabbed her buttocks and pulled her close to him (All). The girl received money but did not remember how much (A11). She was "uncomfortable with the whole experience" and did not return (A11). During a statement that was sworn and tape-recorded, a Royal Palm Beach student whose birthdate was 'elated that she was 16 years of age when she went to defendant's house for the first time at the suggestion of a classmate (A20-21). escorted the girl upstairs to a bedroom, and defendant lay naked on a massage -19- EFTA01177435 table as he handed her some oils (A21). Fully clothed, the girl rubbed defendant's legs and back (A21). Defendant paid her $300 for the massage (A21). Subsequently, called the girl and said that defendant was "in town" and wanted her to "work" (A21). The girl went to defendant's house and provided a massage, again while fully-clothed (A21). The following time, defendant asked the girl to remove her clothes, and she complied (A21). Wearing only thong panties, the girl continued the massage as defendant turned on his back and masturbated while she rubbed his chest (A21). Once he had climaxed, defendant got up and told her to get dressed (A21). The girl received $300 that day (A21). By the time= called and asked her to work again, in about January of 2005, the girl had a boyfriend and did not feel comfortable about going, but she decided to go one last time (A21). Defendant entered the bedroom wearing only a towel and lay down on the massage table (A21). During the massage, defendant caught the girl looking at the clock a few times, and he asked if she was "in a hurry" (A21). When the girl said that her boyfriend was waiting for her outside, and that she would not be back again, defendant told her to leave because she was ruining his massage (A21). Even after that falling out, defendant still wired her money by Western Union as a "Christmas bonus" (A21). During a statement that was sworn and tape-recorded, a girl whose date of birth was_reported having provided massages to defendant for two years, beginning when she was 16 years of age (A14). Over the course of that time, -20- EFTA01177436 defendant "kept pushing to go further and further" (A14). "Recently" she had begun removing her clothes and providing the massage dressed only in a thong panty, and he had begun to masturbate as she rubbed his chest (A14-15). Defendant rubbed her buttocks, but she pulled back when he tried to touch her breasts (A15). She also refused to let defendant use a "large white" vibrator, with a "huge head on the tip," on her; defendant kept the vibrator in a closet near the massage table (A14-15). Defendant "tr[ied] to get away with more and more on each massage," and she considered him to be a "pervert" (A14-15). The most recent massage had been on October 1, 2005 (A15). On that date, the girl asked to borrow one of defendant's cars, and he said he would rent a car for her (A15). Two days later, on October 3rd, called and said that defendant had rented a new Nissan Sentra for her, and that the car would be hers for a month (A15). The girl related that, at the time of the interview, the car was parked next to the I xnn University Gym field (A15). In a statement that was sworn and tape-recorded, a Royal Palm Beach High School student whose birthdate wa reported having been approached by a classmate who asked if the girl wanted to "work" (A17). As the girl explained it, arrangements were made with defendant's "assistant," and then the girl went to defendant's home in March of 2005 and gave him a massage, fully-clothed, in exchange for $200 (A17). Since the girl's answers seemed "almost scripted," and she appeared to be "nervous," the detective asked if she had been contacted by anyone -21- EFTA01177437 from defendant's "organizations" or "house" (A17). The girl said she had been "interviewed" by a "private investigator" named "Paul," who had been hired by defendant (A17). The investigator had asked her about the police investigation, and he had given her his telephone number, which she related to the detectives (A17). The Evidence Corroborating The "Massage" Statements The probable-cause affidavit also outlined a variety of other evidence uncovered during the investigation, including the following gave a statement that was sworn and taped-recorded (A8-10). said that she was 17 years of age when she was approached by a friend about providing a massage for defendant in exchange for $200 (A8). friend drove her to defendant's home, where defendant and greeted her in the kitchen, and theft= ledn the upstairs bedroom, arranged the massage table and oils, and left the room (A9). Defendant entered the room wearing only a towel, lay face- down on the table nude, and selected an oil for her to use (A9). was naked while performing the massage, and defendant grabbed buttocks; "felt uncomfortable" and said that she did not want to be "touched" (A9). Defendant paid $200 for the massage (A9). Defendant offered to pay for simply bringing girls to him—"the younger the better," defendant said (A9). One time, brought a 23-year-old, and defendant said she was "too old" (A9). remembered having brought six different girls to defendant, including -22- EFTA01177438  all between the ages of 14 and 16 (A9). was the youngest— she was 14 years of age at the time of the massage (A9). Defendant did not contact directly to make arrangements; defendant informed that he was going to travel to Palm Beach, and contacted who in turn arranged for girls to "work" for defendant during that time period (A9-10). called for ■ at home and drove her to defendant's house; was driving a red pick-up truck at that time (A9). Entering through the kitchen door, and ■ met with defendant's house chef and = after which escorted to the upstairs bedroom (A9). ■said she had been paid $300 for the massage, and received $200 for having brought there (A9). was the last girl took to defendant, because parents found out about her "visits" to defendant and she stopped (A10). changed her cellular number in order to avoid =, but continued to call house and leave messages for her there (A9-10). gave the police cellular numbers and possible addresses for the girls whom she had mentioned (A10). Once the interview had concluded, a sergeant informed that, by admitting that she had taken underage girls to defendant's house, she had implicated herself in a crime (A10). During the ride home, told the police, "I'm like a Heidi Fleiss" (A10). That statement was recorded by a device in the car (A10). -23- EFTA01177439  During a statement that was sworn and tape-recorded, a Royal Palm Beach High School student whose birthdate was reported that approached girls at school and asked if they wanted to "work" for defendant by giving him massages (A19). The girl declined to provide any massages herself, but she went along on four or five occasions when took other girls, including ■, to defendant's home (A19). The girl waited in the kitchen with during the massage, and defendant's cook provided food for them (A19). was given $200 for each girl she delivered (A19). The girl noticed that there were many photographs of naked girls in the house (A19). During an interview, Jose Alessi stated that, from about 1993 through 2004, he had been employed by defendant as house manager, driver, and maintenance person at the Palm Beach house (A26). Defendant's cooks and assistants travelled with him on his private plane (A26). Defendant received three massages each day in the house (A26). Each masseuse was different, and toward the end of Alessi's period of employment, the masseuses were "younger and younger"—sixteen or seventeen years of age "at the most" (A26). The massages took place in defendant's bedroom; Alessi set up the massage table there (A26). There were times toward the end of Alessi's employment that he found a vibrator and long rubber penis in the sink after the massage; Alessi had to wash off those items (A26). "[A]lmost always" after a massage Alessi had to make defendant's bed (A26). -24- EFTA01177440  During a statement that was sworn and tape-recorded, Alfredo Rodriguez related that, from November 2004 through May of 2005, he had been employed by defendant as "house manager" of the Palm Beach home (A26). In this capacity, Rodriguez acted as butler, chauffeur, chef, and houseman; he also ran errands for defendant, and provided for defendant's guests (A26). During the time defendant was "in residence," he had two massages a day—one in the morning, and one in the afternoon (A26). Rodriguez was told to expect someone and to make them comfortable until either defendant or_i arrived; Rodriguez admitted the girls into the kitchen, where either defendant or met them and escorted them upstairs (A26). The girls appeared to be too young to be masseuses; Rodriguez knew that the girls were still in high school and were of high school age (A26). On one occasion, at defendant's direction, Rodriguez delivered a dozen roses to Royal Palm Beach High School for one of the girls who had come to the house to provide a massage (A26). On another occasion, also at defendant's direction, Rodriguez rented a car from Dollar Rent-A-Car and delivered it to the same girl—so she could drive to defendant's home without incident, whereas otherwise she often needed rides to and from the house (A27). Rodriguez produced a folder containing documentation: there was a note on defendant's stationery directing the delivery of roses to Royal Palm Beach High School after school play, and on the same stationery a direction to rent a car -25- EFTA01177441 for and to extend the contract (A27). Rodriguez believed that there was "a lot more going on than just massages" (A26). Rodriguez often cleaned defendant's bedroom after the massages, and found vibrators and "sex toys" scattered on the floor; he "wiped down" those items and put them away in an armoire near defendant's bed (A26-27). While executing a search warrant at defendant's home, the case detective saw a pink-and-green couch in the master bedroom, photographs of naked young girls lining a wall of the stairway leading from the kitchen to the bedroom, and numerous photographs of naked young girls throughout the houses; some of the subjects of the photographs seemed to be girls whom the detective had interviewed (A23). Inside a bedroom desk containing stationery in defendant's name, the detective found a high school transcript for.. (A23). In an armoire next to the bed, the detective found a bottle of massage oil (A23). There was a massage table in the master bedroom, and other tables throughout that floor of the house (A23). On the first floor, the detective found two covert cameras hidden within clocks—one in the garage, and the other on a shelf behind a desk (A23). A computer found in the house appeared to display images from the two covert cameras, and the hard drive of that computer contained several images of and other girls whom the police had interviewed (A23). Telephone message books recovered from the house contained carbon copies of various messages, some of which listed the names and telephone numbers of girls whom the detective recognized from the -26- EFTA01177442 investigation (A23). In the text of some of those messages, there were notations indicating that the caller was confirming a "work" appointment (A23). Other messages listed the caller's message as, "I have girls for him," and, "I have 2 girls for him"; name appeared at the bottom of those messages, in the space provided for the name of the person who had taken the message (A23). Subpoenaed cellular telephone records showed that had called "during the exact times and dates" of the incidents that had described, and that also had called and "during the time frame" of the incidents related by those girls (A27). A comparison of data from subpoenaed aviation records indicating arrival and departure times for defendant's private plane at Palm Beach International Airport, and subpoenaed cellular telephone records showed that had made telephone calls to and the victims either "in the days just prior to" defendant's arrival in Palm Beach, or during the time he was already there (A27). After the interview of the girl whose birthdate was detectives found a silver Nissan Sentra parked near the gym of Lynn University—the car was registered to Dollar Rent-A-Car; had been rented by Janusz Banasiack, who was employed as defendant's houseman at the time; and had been charged to a credit card in defendant's name (A15). Subpoenaed records of Western Union revealed that, on December 23, 2004, defendant had sent money to the girl with birthdate (A21). -27- EFTA01177443  M father told police that had come to their home to get on February 6, 2005, and that was driving a pick-up truck at the time (AD. During a controlled, tape-recorded telephone call to cellular telephone,■ asked what she "need[ed] to do to make more money," and replied, "The more you do, the more you get paid" (A8). subsequently caller cellular telephone and left a voicemail message indicating that she had set up an appointment for-to go to defendant's house at 11:00 a.m. on April 5, 2005; the police recorded that message from voicemail (A8). A trash pull from defendant's house on April 5, 2005, revealed a telephone message for defendant which listed the names of and and the time 11:00 a.m. (A8). During the course of the investigation, detectives learned that several people whom the police had identified as possible victims were in fact 18 years of age or older, and therefore were consenting adults (A25). During interviews, these adults described what the police found to be "the same massage routine" as the one portrayed by the victims: contacted them and set up appointments for them to "work"; they entered defendant's house through the kitchen, and escorted them to an upstairs bedroom; defendant entered the room wearing only a towel and asked them to get comfortable; as they performed the massage naked, defendant either touched their vaginas with his fingers or rubbed their vaginal areas with a vibrator; defendant masturbated to climax, and at that point the massage ended (A25- 26). -28- EFTA01177444 The Recommendations Of The Board Pursuant to the mandate of Corrections Law Section 168-1, the Board issued a "Case Summary" and a completed "Risk Assessment Instrument" with respect to defendant. These documents were based upon the Florida probable-cause affidavit, as well as defendant's "inmate file," which included defendant's pre-sentence report, prior criminal history, and post-offense behavior (A65). The Case Summary The Case Summary included a detailed account of the operation that defendant had established and maintained for the purpose of satisfying his obsessive sexual desire for young girls. The Summary stated that, during 2005, defendant had sexually assaulted "numerous" girls between the approximate ages of 14 and 17 (A65). "Most" of the victims had been "recruited" from a local high school by a 17-year-old who herself had begun as one of defendant's massage victims (A65). The Summary noted police reports containing references to police conversations with "numerous" girls (A65). According to the police reports, "most" of the girls were "embarrassed to speak with police regarding what had happened to them while they were in [defendant]'s home" (A65). Nonetheless, "[s]worn statements" had been taken from "at least five victims and seventeen witnesses" about "massages and unlawful sexual activity" that had taken place at defendant's home (A65). -29- EFTA01177445  The Summary recounted how, one after another, school girls had been lured to defendant's home with the promise of money in exchange for performing a "massage" (A65). Once the girl had been led through his home and to his bedroom, past photo displays of naked young girls, defendant entered the bedroom wearing only a towel and lay down on a massage table that had been set up there (A65). On most occasions, defendant immediately removed the towel and asked the girl to remove her clothing as well (A65). Most girls undressed down to their bra and panties, and some removed even those items (A65). During the massage, defendant either touched the girl's breasts, inserted his fingers into her vagina, or used a vibrator on the girl's vaginal area—sometimes doing a combination of those things (A65). Defendant masturbated to climax during the encounter, often ejaculating into the towel that he had been wearing (A65). The girls were paid a minimum of $200 at the end of each encounter (A65). Pointing to a number of victims as examples, the Summary stated that, with a 14-year-old, for example, defendant had touched the girl's vaginal area with a vibrator while she performed the massage (A65). Yet a different girl, 16 years of age, had gone to defendant's home at least 100 times over the course of a two-year period (A65). When receiving a massage from this girl, defendant had masturbated while either touching the young girl's breasts, inserting his fingers into her vagina, or using a vibrator on her vaginal area (A65). On some occasions, defendant paid this young girl to engage in sexual activity with an adult female friend of his while he watched; -30- EFTA01177446 defendant sometimes participated by performing oral sex on the young girl (A65). On one occasion, the encounter escalated to the point where defendant forcibly raped the girl—turning the teenager over on the massage table and, against her will, forcibly inserting his penis into her vagina (A65). The Summary stated that defendant's conduct while on Community Control had been assessed as "satisfactory"; that he lacked a history of substance abuse; and that, because defendant had pleaded guilty, he was being "credited" with having accepted responsibility for his actions (A65). Regarding defendant's criminal history, the Case Summary stated that, in 1973, in England, defendant had been convicted of the misdemeanor Unlawful Possession of an Offensive Weapon—namely, a cane that incorporated a concealed blade (A65). Defendant had been assessed for: "sexual and deviate intercourse, forcible compulsion, numerous victims and their ages, a continued course of sexual misconduct, a prior misdemeanor conviction in England absent specific information, his stranger relationship to most victims, and establishing a relationship with these underage girls for the purpose of victimization" (A65). The Board calculated that defendant "score[d] as a Level III Sex Offender with absolutely no basis for downward departure" (A66). As the Board assessed the circumstances, defendant had "used his wealth and power in such a way so that he could take advantage of many teenage girls to satisfy his own sexual perversions" (A65-66). -31- EFTA01177447  The Risk Assessment Instrument Of the fifteen factors included in the Risk Assessment Instrument, the Board recommended