EFTA00181023

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 (2d Dep't 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 (2d Dep't 2007) (holding that it was improper for court to 
consider allegations concerning a charge that was dismissed in 
evaluating defendant's SORA risk level); People u. Arotin, 19 A.D.3d 845 
(3d Dep't 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 
24 
EFTA00181083

EFTA00181084

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.84:14-19, 85:19-86:1, 86:10-12 (Tr.). 
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 A.84:14-19, 85:19-86:1, 86:10-12 (Tr.). As a 
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.93:21, 94:6-95:9 
25 
EFTA00181085

EFTA00181086

(Tr.). 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.85:11-18 (Tr.) (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 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.96:11-13 (Pr.). 
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, 572-73, 
(2009) ("Of course, information found in a case summary ... need not 
always be credited -- it may be rejected when it is unduly speculative or 
26 
EFTA00181087

N 
EFTA00181088

its accuracy is undermined by other more compelling evidence"); see also 
People v. Mabee, 69 A.D.3d 820 (2d Dep't 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 offender disputes the relevant contents of that evidence. 
See People v. Judson, 50 A.D.3d 1242 (3d Dep't 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 (3d Dep't 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 (3d Dep't 
2010) (noting that the "uncontested contents of a case summary can 
. . 
satisfy the People's burden of demonstrating . . . clear and convincing 
27 
EFTA00181089

'I 
• 
• 
EFTA00181090

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. 
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 A.65 (Board 
Recommendation); A.6 (Palm Beach Police Department - Probable 
Cause Affidavit of J. Recarey, 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." 
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 
it 
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 Activity with a Minor, Fla. Stat. § 794.05(1), and Lewd and Lascivious 
Molestation, Fla. Stat. § 800.04(5) -- charges that were never brought. 
28 
EFTA00181091

EFTA00181092

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 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.83:23-84:19, 85:19-86:1 (Tr.). 
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.83:14-84:19, 
85:11-87:12 
(Tr.); 
see 
also 
A.65 
(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 
29 
EFTA00181093

EFTA00181094

allegations contained therein, both generally and with regard to specific 
allegations. See A. 90:9-12, 92:13-21, 95:12-18 (Tr.). Notwithstanding 
the obvious existence of disputed relevant issues, the Court did not 
provide the 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.93:21, 96:11-13 (Tr.). 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 
[sic] guilty to one, but apparently there were 
more than one and I think the People concede 
that although they say it was not reliable. 
A.94:10-13 (Tr.). This reliance on alleged conduct that the People, as 
the party bearing the burden of proof, expressly stated they could not 
prove by clear and convincing evidence, was plainly erroneous as a 
. , 
matter of law. See Correction Law §§ 168-k(2), 168-n(2) (stating that 
30 
EFTA00181095

EFTA00181096

the facts supporting the court's determination shall be supported by 
clear and convincing evidence). 
Accordingly, the Court's Level 3 
determination, based specifically on unproven alleged conduct, cannot 
stand, and the Court's Order should be vacated.12
12 
Even if the Court had a lawful evidentiary basis to adopt the Board's case 
summary in full (which it did not), the case summary does not establish by clear 
and convincing evidence all of the factors for which points were assessed against 
Appellant. For example, the facts alleged in the case summary, even if taken as 
true, do not set forth, by clear and convincing evidence, a continuing course of 
sexual misconduct, which requires a specific finding of either "(i) two or more acts of 
sexual contact, at least one of which is an act of sexual intercourse, oral sexual 
conduct, anal sexual conduct, or aggravated sexual contact, which acts are 
separated in time by at least 24 hours, or (ii) three or more acts of sexual contact 
over a period of at least two weeks" with an underage victim. See Sex Offender 
Registration Act: 
Risk Assessment Guidelines and Commentary, Commentary 
(2006), at 10 ("Factor 4: Duration of Offense Conduct with Victim"); see also People 
v. Redcross, 54 A.D.3d 1116 (3d Dep't 2008) (holding that continuing course of 
sexual misconduct was not supported by clear and convincing evidence where record 
was silent as to dates that incidents of sexual conduct occurred in relation to each 
other); People u. Donk, 39 A.D.3d 1268, 1269 (4th Dep't 2007) (modifying SORA risk 
assessment where there was not clear and convincing evidence to establish 
continuing course of sexual misconduct under specific definition set forth by SODA); 
People u. Boncic, 15 Misc. 3d 1139(A), 841 N.Y.S.2d 281 (Sup. Ct. N.Y. Cty. 2007) 
(holding that there must be a finding of "actual sexual contact" with the underage 
victim to score for the continuing course of conduct factor under SORA). Here, the 
case summary only speaks of certain allegations generally and provides no detail 
regarding the timing of specific alleged acts of sexual contact, the number of times 
Appellant allegedly engaged in specific acts with individual complainants, or the 
age of the complainants at the time of the relevant acts. Similarly, the case 
summary does not establish by clear and convincing evidence several other factors 
for which points were assessed against Appellant, including the "use of violence" 
(e.g. case summary provides only conclusory allegations of "forcible rape" without 
establishing the element of "forcible compulsion"); "sexual contact with victim" (e.g. 
case summary does not specify the age of each complainant at the time of alleged 
relevant sexual contact to determine whether each complainant was underage and 
therefore a "victim"); "number of victims" (same); and "age of victim" (same). 
31 
EFTA00181097

: 
. 
EFTA00181098

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. 
In addition, the Court's assessment of points against Appellant 
based on allegations that were not and could not be proven by clear and 
convincing evidence constituted a clear violation of Appellant's federal 
due process rights. 
It is settled as a matter of federal constitutional law that those 
persons convicted of a sex offense and required to register under a state 
registration and notification scheme like SORA have a protected liberty 
interest that entitles them to procedural due process. See Doe u. Pataki, 
3 F. Supp. 2d 456, 468 (S.D.N.Y. 1998); see also People v. David W, 95 
N.Y.2d 130, 138 (2000) (holding that the imposition of a Level 3 SORA 
determination implicates liberty interests and triggers due process 
safeguards). 
Courts evaluating that liberty interest under the 
procedural due process analysis articulated by the U.S. Supreme Court 
in Matthews v. Eldridge, 424 U.S. 319 (1976) (balancing the private 
interest affected by state action, the risk of erroneous deprivation of 
that interest, and the interests of the state) have determined that "the 
nature of the [sex offender] classification proceeding is serious enough" 
32 
EFTA00181099

i 
EFTA00181100

and "carries with it a high risk of error," such that the state must afford 
an individual facing such a risk classification a constitutionally-
mandated minimum level of due process. Doe, 3 F. Supp. 2d at 469, 471 
(citing Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995)). While "the due 
process protections required for a risk level classification proceeding are 
not as extensive as those required in a plenary criminal or civil trial," 
Id. at 470, federal due process is only satisfied when a person being 
assessed under SORA is afforded a "pre-notification hearing 
accompanied by a comprehensive set of procedural safeguards," 
including each of the following: 
(1) 
a judicial determination of his risk level 
classification [by hearing]; 
(2) 
notice of the classification proceeding, 
sufficiently in advance of the hearing to... 
prepare a challenge; 
(3) 
notice of the proceeding must contain a 
statement of [its] purpose and the Board's 
recommended risk level classification; 
(4) 
an opportunity to retain counsel; 
(5) 
pre-hearing discovery; 
(6) 
the state must prove the facts supporting 
each risk factor by clear and convincing 
evidence; and 
the right to appeal. 
33 
(7) 
EFTA00181101

EFTA00181102