EFTA00181023

• • 
a 
To be Argued By: 
JAY P. LEPKOWITZ 
New York County Clerk's Index No. 30129/2010 
'.ex 'Dark Sul:mettle Tourt 
APPELLATE DIVISION-FIRST DEPARTMENT 
PEOPLE OF THE STATE OP NEW YORK, 
—against—
JEFFREY E. EPSTEIN, 
Respondent, 
Defendant-Appellant. 
rI 
BRIEF FOR DEFENDANT-APPELLANT 
JAY P. LEFKOWITZ 
SANDRA LYNN MUSUMECI 
KnAND & ELLIS LLP 
601 Lexington Avenue 
New York, New York 10022 
Attorneys for Defendant-Appellant 
REPRODUCED ON RECYCLED PAPER 
cps-P-ikA 
EFTA00181023

EFTA00181024

TABLE OF CONTENTS 
PRELIMINARY STATEMENT 
1 
QUESTIONS PRESENTED 
STATEMENT OF FACTS 
3 
I. 
The Underlying Offense 
4 
II. 
Sex Offender Registration 
6 
III. 
The Board's Recommendation 
7 
IV. 
Pre-Hearing Investigation By the District Attorney 
11 
V. 
SORA Hearing 
12 
ARGUMENT 
16 
I. 
THE COURT'S LEVEL 3 DETERMINATION IS NOT 
SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AS 
REQUIRED BY SORA AND AS A MATTER OF FEDERAL 
CONSTITUTIONAL LAW. 
17 
A. 
The People's Investigation Revealed That The Board's 
Recommendation Could Not Be Proven By Clear and 
Convincing Evidence. 
20 
B. 
The Court Improperly Relied on the Board's Recommendation 
Where the Facts Cited Therein Were Disputed and No Further 
Evidence Was Presented. 
25 
C. 
Determining Appellant To Be a Level 3 Offender Based on 
Factors That Were Not Proven by Clear and Convincing 
Evidence Violated Appellant's Federal Due Process Rights. 
32 
II. 
THE COURT BASED ITS LEVEL 3 DETERMINATION UPON 
IMPROPER CONSIDERATIONS 
36 
A. 
The Court Improperly Assessed Points Against Appellant for 
Conduct That Is Not Scoreable Under SORA. 
36
EFTA00181025

EFTA00181026

B. 
The Court Improperly Allowed Personal Feelings and Matters 
Outside the Record to Influence Its SORA Determination 
38 
III. THE COURT'S ORDER DOES NOT COMPLY WITH THE 
MANDATES OF SORA AND CONSTITUTIONAL DUE 
PROCESS AND MUST BE VACATED. 
45 
CONCLUSION 
49 
EFTA00181027

, 
EFTA00181028

TABLE OF AUTHORITIES 
Cases 
Doe v. Pataki, 
3 F. Supp. 2d 456 (S.D.N.Y. 1998) 
32, 33, 35, 36 
E.B. v. Verniero, 
119 F.3d 1077 (3d Cir. 1997), 
cert. denied, 522 U.S. 1109 (1998) 
34, 35 
Fresh Del Monte Produce N.V. v. Eastbrook Caribe, 
40 A.D.3d 415 (1st Dep't 2007) 
43 
Goldberg v. Kelly, 
397 U.S. 254 (1970) 
48 
Matthews v. Eldridge, 
424 U.S. 319 (1976) 
32 
New York State Bd. of Sex Exam'rs v. Ransom, 
249 A.D.2d 891 (4th Dep't 1998) 
18 
People v. Arotin, 
19 A.D.3d 845 (3d Dep't 2005) 
24 
People v. Boncic, 
15 Misc. 3d 1139(A), 841 N.Y.S.2d 281 (Sup. Ct. N.Y. Cty. 2007) 
31 
People v. Brooks, 
308 A.D.2d 99 (2d Dep't 2003) 
'31
People v. Coffey, 
45 A.D.3d 658 (2d Dep't 2007) 
24 
People v. Curthoys, 
77 A.D.3d 1215 (3d Dep't 2010) 
27 
People v. David W., 
95 N.Y.2d 130 (2000) 
:32 
iii 
EFTA00181029

EFTA00181030

People v. Dominie, 
42 A.D.3d 589 (3d Dep't 2007) 
19 
People v. Donk, 
39 A.D.3d 1268 (4th Dep't 2007) 
31 
People v. Ferguson, 
53 A.D.3d 571 (2d Dep't 2008) 
39 
People v. Gilbert, 
78 A.D.3d 1584 (4th Dep't 2010) 
47 
People v. Jimenez, 
178 Misc. 2d 319, 679 N.Y.S.2d 510 (Sup. Ct. Kings Cty. 1998) 
18 
People v. Johnson, 
11 N.Y.3d 416 (2008) 
18 
People v. Jordan, 
31 A.D.3d 1196 (4th Dep't 2006) 
'19
People v. Judson, 
50 A.D.3d 1242 (3d Dep't 2008) 
97 
People v. Mabee, 
69 A.D.3d 820 (2d Dep't 2010) 
27 
People v. Mingo, 
12 N.Y.3d 563 (2009) 
26 
People u. Miranda, 
24 A.D.3d 909 (3d Dep't 2005) 
47 
People v. Rampino, 
55 A.D.3d 348 (1st Dep't 2008) 
43 
People v. Redcross, 
54 A.D.3d 1116 (3d Dep't 2008) 
:31 
People v. Sherard, 
73 A.D.3d 537 (1st Dep't 2010) 
43 
iv 
EFTA00181031

. 
EFTA00181032

People u. Smith, 
66 A.D.3d 981 (2d Dep't 2009) 
24 
People v. Strong, 
77 A.D.3d 717 (2d Dep't 2010) 
47 
People v. Wasley, 
73 A.D.3d 1400 (3d Dep't 2010) 
27 
Rossi v. Hartford Fire Ins. Co., 
103 A.D.2d 771 (2d Dep't 1984) 
19 
Solomon v. State of New York, 
146 A.D.2d 439 (1st Dep't 1989) 
19 
Statutes 
14 V.I.C. § 1722(b) 
14 V.I.C. § 1724(d) 
14 V.I.C. § 1724(e) 
Correction Law § 168-a(2) 
Correction Law § 168-a(2)(a) 
7 
7 
7 
9 
5, 9 
Correction Law § 168-a(2)(a)(i)  
3, 37 
Correction Law § 168-a(2)(d)(ii) 
9, 17 
Correction Law § 168-a(7) 
45 
Correction Law § 168-k 
17, 45 
Correction Law § 168-k(2) 
passim 
Correction Law § 168-1(6) 
8 
Correction Law § 168-1(6)(c) 
8 
Correction Law § 168-n 
45 
v 
EFTA00181033

EFTA00181034

Correction Law § 168-n(2) 
16, 18 
CPLR 5513 
16 
CPLR 5515 
16 
Fla. Stat. § 775.21 
6 
Fla. Stat. § 794.05(1)  
21, 28 
Fla. Stat. § 796.03 
1, 4, 6 
Fla. Stat. § 796.07(2)(f) 
1 
Fla. Stat. § 796.07(4)(c)  
4 
Fla. Stat. § 800.04(5)  
21, 28 
Fla. Stat. § 943.0435 
4, 5, 6, 9 
N.Y. Penal Law § 230.25 
9 
Rules 
Prince, Richardson on Evidence § 3-205 (Farrell 11th ed.) 
19 
Sex Offender Registration Act: Risk Assessment Guidelines and 
Commentary, Commentary (2006) 
22, 31, 41 
vi 
EFTA00181035

EFTA00181036

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)(f), 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"), notwithstanding the position of the District 
Attorney's Office that the Board's recommendation was legally infirm 
1 
EFTA00181037

EFTA00181038

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 offender should be vacated, and 
Appellant's risk level should be recalculated based solely on 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 
EFTA00181039

EFTA00181040

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 whose primary residence is in the U.S. 
Virgin Islands and who also maintains vacation properties in New York 
and Florida. See A.53 (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 at 
his New York property for periods of ten days or more at a time. See 
A.53 (Letter of M. Weinberg of Aug. 16, 2010); A.87:21-25, 88:21-
89:3_(Tr.).2
1 
References to the Record on appeal are denoted herein as "A." followed by the 
applicable Appendix number. 
2 
References to the transcript of the January 18, 2011 SORA hearing are 
denoted herein as "Tr." followed by the applicable page and line citation. 
3 
EFTA00181041

EFTA00181042