EFTA00603264

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 
they say it was not reliable. 
A. 
(Tr. 13:104343). 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 the 
facts supporting the court's determination shall be supported by clear 
and convincing evidence). 
Accordingly, the Court's Level 3 
32 
K&E 443684444182681124 
EFTA00603298

determination, based specifically on unproven alleged conduct, may 
netcannot 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, 864 
N.Y.S.2d 206 (3d Dept 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, 833 N.Y.S.2d 828, 828 (4th Dept 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 SORA); 
People v. Boncic, 15 Misc. 3d 1139(A), 841 N.Y.S.2d 281 (Sup. Ct. N.Y. County 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 
ease summary only speaks of certain allegations generall 
. 
' . • 
. 
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 
conclusor•v allegations of "forcible rape" without establishing the element 
of "forcible compulsion" • 
• 
: 
. ' 
• a ' 
i mg : • 
si : 
does not specify the age of each complainant at the time of alleged relevant 
inapt was 
e_and 
therefore a "victim"); "number of victims" (same) and "age of victim" 
(same). 
33 
K&E14368414418268112,11 
EFTA00603299

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 Co:)nstitutional 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 v. Pataki, 
3 F. Supp. 2d 456, 468 (S.D.N.Y. 1998); see also People v. David W, 95 
N.Y.2d 130, 138, 711 N.Y.S.2d 134, 139 (2000) (holding that the 
imposition of a Level 3 SORA determination implicates liberty 
interests and triggers due process safe • u :_rd 
 . 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, 96 S.Ct. 893 (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 
34 
K&E 443684444182681124 
EFTA00603300

offender] classification proceeding is serious enough" 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: 
a judicial determination of his risk level 
classification [by hearing]; 
notice of the classification proceeding, 
sufficiently in advance of the hearing to ... 
prepare a challenge; 
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; 
35 
K&E 443684444182681124 
EFTA00603301

(6) 
the state must prove the facts supporting 
each risk factor by clear and convincing 
evidence; and 
(7) 
the right to appeal. 
See id. at 471-72 (articulating the above seven procedures as essential to 
satisfy procedural due process when assigning risk levels under SORA) 
(emphasis added); see also People v. Brooks, 308 A.D.2d 99, 103103, 763 
N.Y.S.2d 86, 90-91 (2d Dept 2003) (same). 
This sixth (constitutional factor -- the requirement that the State 
bear the burden of proof and prove the facts supporting each risk factor 
upon which a risk assessment is based by the elevated standard of clear 
and convincing evidence -- is of particular significance, in that it is a 
recognition of the severe injurious impact upon liberty, reputation, and 
opportunity that an unjustified notification level can have on an 
offender: 
Because "the possible injury to the individual 
[registrant] is significantly greater than any 
possible harm to the state," the registrant, 
consistent with due process, cannot "be asked to 
share equally with society the risk of error" . . . . It 
necessarily follows that the Due Process Clause 
requires that the state prove its case by clear and 
convincing evidence in a Megan's Law proceeding. 
36 
K&E 443684444182681124 
EFTA00603302

E.B. v. Verniero, 119 F.3d 1077, 1111 (3d Cir. 1997), cert. denied, 522 
U.S. 1109 (1998) (citing Addington v. Texas, 441 U.S. 418, 42-7427, 99 S. 
Ct. 1804, 1810 (1979)); see also People v. Brooks, 303 A.D.2d at 105 
(observing "a SORA determination undeniably has a profound impact on 
a defendant's liberty interest due to the registration and community 
notification provisions"). In other words, because a SORA hearing 
"threaten[s] the individual involved with a significant deprivation of 
liberty or stigma," due process demands "more than average certainty on 
the part of the factfinder." E.B. v. Verniero, 119 F.3d at 1110-11 (citing 
Santosky v. Kramer, 455 U.S. 745, 756-58, 102 S. Ct. 1388, 1396-97 
(1982)). Accordingly, "registrants are entitled to have the burden of 
persuasion placed on the state, with the state obligated to prove the 
proposed level and manner of notification by clear and convincing 
evidence." Doe, 3 F. Supp. 2d at 4-747471;seestsoPeopleJLDanicLIV.4
95 N.Y.2d at 140 (holding "Due process requires that the State 
hear the burden of proving, at some meaningful time, that a 
defend nt deserves the 
ifi 
i m n 
ned." 
Here, the Court's Level 3 determination, made without regard to 
the People's presentation and advocacy at the hearing and unsupported 
37 
K&E 443684444182681124 
EFTA00603303