EFTA00181147

Again, there were no such contested factual issues, and that is undoubtedly why there 
was no request for an opportunity to introduce any additional proof.' 
For much the same reasons, the SORA court's order cannot reasonably be 
viewed as deficient. Defendant now claims that the order lacked the requisite findings 
and legal conclusions (Brief for Defendant at 45-48). At the time the order was 
issued, though, defendant understandably saw no need to make that kind of protest. 
After all, as noted, none of the individual point assessments had been called into 
question. The court had rejected the notion—advanced by both defendant and the 
People—that the assessment had to be limited to the conduct formally charged. And 
there was no suggestion whatsoever, at any juncture of the hearing, that the totality of 
defendant's conduct, as set forth in the SORA materials, failed to support the point 
assessments as set forth in the Board's Risk Assessment Instrument. 
5 In a related argument advanced in a footnote, defendant complains that he was 
denied his right to written notice of the People's intention to make a recommendation that 
differed from that of the Board; once the People had made their position known at the 
hearing, he further urges, the court should have "adjourned the matter to receive and review 
a written statement of the People's determination and supporting reasons" (Brief for 
Defendant at 39). Of course, had defendant voiced a need for additional time, the court 
certainly could have granted that request—thereby curing the purported problem about 
which defendant now complains. Defendant certainly should not be permitted to obtain 
relief on a basis that so easily could have been eliminated if he had only protested at the 
time. 
It makes perfect sense, though, that defendant saw no need to cry surprise about the 
position taken by the People—both because his statements at the hearing indicated he was 
aware of that position in advance (H8-9), and more fundamentally because he simply did not 
need to prepare for arguments that were entirely favorable to him. Contrast People v. 
,Ferguson, 53 A.D.3d 571 (2d Dept 2008)(at the heating, defendant objected to lack of 
notice of amendment to Risk Assessment Instrument). 
-57-
EFTA00181207

Under these particular circumstances, the court's dictated order—recounting 
the Board's assessments one by one and endorsing them—more than amply explained 
the basis for its determination and thereby permit full appellate review. Se t people v. 
Smith, 75 A.D.3d 1112, 1112 (4th Dept. 2010)(SORA court's oral findings of fact and 
conclusions of law were sufficient where thay were "clear, supported by the record, 
and sufficiently detailed to permit intelligent appellate review"); people v. Belzer, 84 
A.D.3d 905, 906 (2d Dept. 2011)(While a SORA determination should be supported 
by findings of fact, there is no need for a court to make gratuitous findings of fact 
with respect to issues that are entirely academic"); me generally Correction Law §168-
n(3). 
Indeed, defendant implicitly acknowledged as much at the hearing. After the 
court announced its determination to "rely on the board," one of defendant's 
attorneys declared that defendant "reserve[d] the right" to appeal; counsel then 
prompted the court, "For the purposes of appeal, I believe that Your Honor -- " 
(1412-13). At that point, the court delivered its full decision (1413-14), and afterwards 
defendant did not complain that the form of the decision was deficient in any way. 
Instead, implicitly acknowledging that the order was entirely dear, defendant's other 
attorney took the opportunity to make some additional remarks, essentially attempting 
to re-argue the merits of the court's dear determination (H14-15). 
Moreover, aside from the complete absence of preservation, there is no merit 
to any of defendant's other complaints about the proceedings, including the 
-58-
EFTA00181208

correctness of certain individual point assessments recommended by the Board and 
adopted by the court. For example, in a footnote, defendant refers to an "agreement" 
by "the parties" that defendant had not used forcible compulsion (Brief for 
Defendant at 42), but his record citation for that assertion reveals nothing more than 
the court's assessment of points on the subject of force (1413). In fact, as noted, the 
materials set out in excruciating detail how, with one teenage victim, defendant 
responded to her stated refusal of vaginal penetration by "grabb[ing]" her, turning her 
over on her stomach, and holding her head down "forcibly" as he inserted his penis 
into her vagina and repeatedly "pumptedr his penis into her (A17). That defendant 
later apologized, and gave her $1,000 in cash (A17) did not erase his use of forcible 
compulsion, and did not make that conduct other than a forcible rape—which, of 
course, was a crime no matter what her age, and no matter what her geographical 
location within the United States at the time. The Board recognized that obvious fact 
when it labeled the conduct as such on the first page of its Case Summary.6
6 At one point, when trying to minimize the nature of the conduct at issue, defense 
counsel urged that "[411 of the alleged conduct" that was "cited in the board's write up" was 
"commercial conduct" (149). As counsel explained, "All of the alleged conduct the women 
went voluntarily, there are no allegations of force certainly none" (i9). Plainly, that 
particular reference to the absence of force did not preserve his current claim on the subject 
After all, these references to the girls having made the trip to defendant's home voluntarily, 
in return for payment, cannot reasonably have alerted the SORA court to his current 
suggestion that the point assessment for forcible compulsion was unwarranted because none 
of the particular sex acts alleged to have been committed by defendant once in that house 
had been inflicted on a victim in a forcible manner. Certainly, these hearing remarks about 
the mere "commercial" and "voluntary" nature of the overall arrangement were not directed 
(Continued...) 
-59-
EFTA00181209

In a different footnote, defendant complains that the Board assessed five 
points against him in the category of Criminal History despite its notation in the Case 
Summary that it had done so "absent specific information" (Brief for Defendant at 8). 
In fact, on the same page of the Case Summary, the Board also states that defendant 
had been convicted of Unlawful Possession of an Offensive Weapon, a misdemeanor, 
in England, stemming from his possession of a cane that contained a concealed blade 
(A65). Read in the context that the Risk Assessment Instrument itself provides, the 
notation "absent specific information" plainly was meant to explain why the Board 
had chosen to award the lowest point assessment permissible for that criminal 
conduct, rather than one of the higher ones mandated in the presence of certain listed 
aggravating factors. In other words, "absent specific information" about defendant's 
weapons-possession conviction, the Board gave him the benefit of the doubt and did 
not award yet additional points. 
As to the age-of-victim factor, in turn, defendant's belated suggestions 
notwithstanding (Brief for Defendant at 36-38), the SORA court was well aware that 
defendant sometimes received "massages" from girls who were 18 years or older. The 
probable cause affidavit explicitly stated that certain people initially viewed as 
"victims" turned out to be 18 years of age or older and therefore were "consenting 
(...Continued) 
specifically at the point assessment that had been made in the category of "forcible 
compulsion." 
EFTA00181210

adults" under the law (A25-26). 
The affidavit further clarified, though, that these 
"adults" had recounted the "same massage routine" as had the =trap girls (A25), 
and therefore the court, like the detectives who had conducted the investigation, 
recognized that the "adult" accounts provided valuable corroboration of the accounts 
given by the underage victims. Of course, more to the point for risk-assessment 
purposes, the court also knew from the record that the occasional adult "masseuse" 
did nothing to minimize the compelling evidence of demonstrated preference for 
young high school girls—"the younger the better," as defendant himself instructed 
one of his high school recruiter-pimps. 
One final note on the subject of point assessments. As defendant concedes 
(Brief for Defendant at 10), he was given credit for having accepted responsibility for 
his actions by pleading guilty. If the Board had taken the view that defendant now 
espouses—that his guilty plea reflected nothing more than his conduct with one 17-
year-old victim—the point-assessment total would be even higher than the one 
defendant has now. 
Plainly, then, defendant has provided no legitimate reason for this Court to 
doubt the propriety of the determination made by the SORA court. Therefore, 
defendant's request for a recalculation of his risk level must be denied. Nevertheless, 
it bears mention that this Court would not be proper venue for any such recalculation 
in any event. As noted, defendant seeks recalculation on the basis of a myriad of 
arguments that are being made for the first time on appeal. The SORA court, thus, 
-61-
EFTA00181211

was not given an opportunity to consider these arguments when fashioning its 
determination. The People, too, were not given an opportunity to present additional 
evidence on these newly-minted theories, if they so chose. If this Court were inclined 
to grant defendant's request for recalculation, the Court should remand the case for 
that purpose to the SORA court, where the People will have an opportunity to 
introduce additional evidence as well.' 
* 
7 If this Court chooses to remand the case for additional proceedings—either for the 
"re-calculation" of points that defendant seeks, or the opportunity that he seeks for "the 
parties to present evidence"—the People will have an opportunity to correct any 
misimpressions left by defendant, and to provide instead a complete and accurate picture of 
the circumstances that gave rise to the two single-count accusatory instruments dated fully 
two years apart. 
The People's evidence on remand would include proof that defendant had engaged in 
aggressive negotiations with the Palm Beach State's Attorney's Office even before 
indictment; that, after the State's Attorney's Office obtained a single-count indictment, 
Florida federal authorities convened their own grand jury investigation; and that defendant 
entered into a federal non-prosecution agreement with the United States Attorney of the 
Southern District of Florida, under which he agreed to plead guilty to an additional state 
felony charge that carried a consecutive jail sentence and required registration as a sex 
offender. 
While a defendant hardly could have a legitimate objection to an accurate portrayal of 
the facts and circumstances relevant to the SOFA determination that he has challenged, 
defendant here would be particularly hard-pressed to complain on that score since his 
unpreserved entreaties for recalculation, as well as remand, call upon this Court to reach out 
in the interest of justice. 
-62-
EFTA00181212

In sum, the decision of the SORA court is absolutely correct. There is no 
legitimate basis for complaint about either the form or content of that determination. 
CONCLUSION 
The judgment of conviction should be affirmed. 
Respectfully submitted, 
CYRUS R. VANCE, JR. 
District Attorney 
New York County 
GINA MIGNOLA 
DEBORAH L MORSE 
Assistant District Attorneys 
Of Counsel 
August 2011 
-63-
EFTA00181213

-64-
EFTA00181214

PRINTING SPECIFICATIONS STATEMENT 
The word count for this brief is 16,045, excluding the Table of Contents and 
Table of Authorities. The word processing system used to prepare this brief and to 
calculate the word count was Microsoft Word 2007. 
The brief is printed in 
Garamond, a serifed, proportionally-spaced typeface. The type size is 14 points in the 
text and headings, and 13 points in the footnotes. 
EFTA00181215

i 
V 
EFTA00181216