EFTA00792343

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., 119 F.3d at 1110-11 (citing Santosky u. Kramer, 455 U.S. 745, 756-
58 (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 471; see also David W., 95 N.Y.2d at 
140 (holding "Due process requires that the State bear the burden of 
proving, at some meaningful time, that a defendant deserves the 
classification assigned."). 
Here, the Court's Level 3 determination, made without regard to 
the People's presentation and advocacy at the hearing and unsupported 
by clear and convincing evidence, failed to satisfy these basic 
constitutional requirements regarding both the allocation of the burden 
of persuasion (upon the People) and the standard of proof (by clear and 
convincing evidence) for a SORA hearing. 
The Court's complete 
35 
EFTA00792383

reliance on the unsupported, unprosecuted, and disputed hearsay 
allegations in the Board's case summary to buttress a Level 3 
determination violated Appellant's due process rights, as set forth by 
Doe v. Pataki, and accordingly, the Court's Order should be reversed. 
II. 
THE COURT BASED ITS LEVEL 3 DETERMINATION 
UPON IMPROPER CONSIDERATIONS. 
In addition to basing Appellant's risk level determination on 
uncharged allegations that, both in fact and as a matter of law could not 
be proven by clear and convincing evidence, the Court improperly 
assessed Appellant as a Level 3 offender based on additional factors and 
considerations that should not have weighed into its RAI calculation. 
Namely, the Court improperly penalized Appellant for conduct that was 
not scoreable under SORA, even with respect to the complainant from 
his single registerable crime of conviction. In addition, the record lays 
bare that the Court allowed personal bias and irrelevant factors outside 
the record in Appellant's case to influence the Court's SORA 
determination. 
A. 
The Court Improperly Assessed Points Against Appellant 
for Conduct That Is Not Scoreable Under SORA. 
First, the SORA Court improperly scored Appellant for alleged 
conduct that is not registerable, and in some cases is not even criminal, 
36 
EFTA00792384

under New York law with respect to the sole complainant at issue in 
Appellant's single registerable Florida conviction. For example, the 
Court adopted the Board's assessment of points for "sexual intercourse," 
even though the People themselves conceded that the complainant at 
issue was 17 (and therefore over New York's age of consent) when she 
allegedly engaged in consensual intercourse with Appellant. 
See 
A.92:1-7 (Tr.). 
This scoring for sexual intercourse was in clear 
contravention to the SORA statute, which states that prostitution 
offenses are only registerable under SORA where there is clear and 
convincing evidence that the prostitute was "in fact" under 17 at the 
time of the alleged sexual conduct. Correction Law § 168-a(2)(a)(i).13
Additionally, the Court appears to have scored Appellant 20 
points for this same complainant under the "age of victim" factor, even 
though the People made a record that the complainant was "either 16 or 
17" when she met Appellant for the first time. A.92:1-3 (Tr.). The fact 
that, even in the People's view, the specific age of the complainant when 
13 
Of course, the exact allegations for which the Court assessed points against 
Appellant are nearly impossible to identify given the Court's failure to articulate 
findings of fact and conclusions of law supporting its scoring of particular factors. 
See A.4 (Order Appealed From, dated Jan. 18, 2011); A.82 (Tr. generally); see also 
Section III, infra. Nor did the Board's recommendation tie its scoring to particular 
facts in its case summary, which lumped a host of facts together in the aggregate. 
See A.65 (Board Recommendation). 
37 
EFTA00792385

she first met Appellant -- no less when she may have engaged in sexual 
conduct with him -- could not be ascertained precludes a finding that 
this element was proven by clear and convincing evidence. See Solomon 
v. State of New York, 146 A.D.2d 439, 440 (1st Dep't 1989) (defining 
clear and convincing evidence as evidence "that is neither equivocal nor 
open to opposing presumptions"). Yet the Court disregarded the burden 
of proof and made clear that it was scoring Appellant for this factor.14
See A.92:13-93:12 (Tr.). These improper assessments of points on the 
RAI should render the Court's Level 3 determination invalid. 
B. 
The Court Improperly Allowed Personal Feelings and 
Matters Outside the Record to Influence Its SORA 
Determination. 
Next, the Court abused its discretion by allowing an apparent 
personal distaste for Appellant, the nature of the crime for which he 
pleaded guilty and was convicted, and the quantity and nature of 
unproven, 
unprosecuted 
allegations 
cited 
in 
the 
Board's 
recommendation to impinge upon the Court's duty to follow the law. 
The Court demonstrated a remarkable disdain and lack of judicial 
14 
Again, the specific basis upon which the Court scored Appellant for certain 
factors cannot be ascertained from the legally deficient Order, see k4 (Order 
Appealed From, dated Jan. 18, 2011), although the Court's comments at the hearing 
revealed the Court's belief that points should be assessed against Appellant for 
"procuring" this complainant when "she was either 16 or 17." See A.92:1-23 (Tr.). 
38 
EFTA00792386

objectivity in its response to hearing the District Attorney disavow the 
reliability of the Board's recommendation, in receiving the arguments of 
counsel for Appellant, and in rendering its Order as a whole. 
First, although the SORA statute clearly contemplates that the 
District Attorney may depart from the Board's recommendation based 
upon its own evaluation of the evidence,15 see Correction Law §§ 168-
16 
For example, SORA expressly provides, "If the district attorney seeks a 
determination that differs from the recommendation submitted by the board, at 
least ten days prior to the determination proceeding the district attorney shall 
provide to the court and the sex offender a statement setting forth the 
determinations sought by the district attorney together with the reasons for seeking 
such determinations." Correction Law §§ 168-k(2), 168-n(2). 
While the more 
common application of this provision involves the People seeking a higher risk level 
than the Board, the provision clearly encompasses any deviation from the Board's 
recommendation, including the People's discretion to recommend a lower risk level. 
See, e.g., People v. Ferguson, 53 A.D.3d 571, 572 (2d Dep't 2008) (holding that 10-
day notice requirement applies not only to changes in RAI scoring, but to changes in 
factual predicates for RAI scoring). 
Incidentally, it bears noting that the People failed to comply with these 
procedural mandates, constituting a further procedural flaw in these proceedings. 
See Correction Law §§ 168-k(2), 168-n(2). While the People provided Appellant with 
a written alternative RAI immediately prior to the SORA hearing -- and not ten 
days prior to the hearing, as required by SORA -- it appears that the People failed 
to submit their RAT to the Court at all. See Appendix generally. Before rejecting 
out of hand the People's stance that a Level 3 determination could not be supported 
by sufficient evidence, the Court should have adjourned the matter to receive and 
review a written statement of the People's recommended determination and 
supporting reasons. See People v. Ferguson, 53 A.D.3d at 572 (reversing SORA 
order where defendant and court did not receive proper 10-day notice of People's 
revised RAI); cf. People v. Jordan, 31 A.D.3d 1196, 1196 (4th Dep't 2006) (holding 
People's failure to provide sufficient notice of revised RAI was cured where Court 
adjourned matter to allow meaningful opportunity to consider revised RAI). The 
Court's failure to enforce the procedural mandates of the SORA statute was 
prejudicial to Appellant, in that the Court did not have sufficient opportunity to 
39 
EFTA00792387

k(2), 168-n(2), here, the Court rejected the investigation and advocacy of 
the People. Indeed, the Court went so far as to express "shock" that the 
People would support a lower risk level determination than that 
recommended by the Board, almost as a matter of principle. See A.86:9 
(Tr.). The Court disregarded the detailed evidentiary investigation and 
careful parsing of allegations that the People undertook in evaluating 
the Board's recommendation. Ignoring the record at issue concerning 
Appellant and the evidence pertaining to him, the Court focused instead 
on the irrelevant facts of some unidentified case completely unrelated to 
Appellant's: 
I have to tell you, I am a little overwhelmed 
because I have never seen the prosecutor's office 
do anything like this. I have never seen it. I had 
a case with one instance it was a marine who 
went to a bar, and I wish I had the case before 
me, but he went to a bar and a 17 year old, he 
was an adult obviously, he was a Marine, a 17 
year old came up to him and one thing lead [sic] 
to another and he had sex with her and the 
People 
would 
not agree to a downward 
modification on that. 
understand the compelling reasons for the alternative RAI calculation that the 
People promoted. See id. 
40 
EFTA00792388

So I am a little overwhelmed here because I see --
I mean I read everything here, I am just a little 
overwhelmed that the People are making this 
application. 
I could cite many many, I have done many 
SORAs much less troubling than this one where 
the People would never make a downward 
departure like this.16
A.84:21-85:10 (Tr.). 
Later, when Appellant's counsel disputed that 
there were any credible -- much less prosecuted -- allegations that 
Appellant ever used force, the Court again began comparing Appellant's 
case to the same irrelevant case about "a marine" -- a matter completely 
unknown to Appellant and having no connection whatsoever to 
Appellant's case -- seemingly to suggest that Appellant should 
nevertheless be scored as Level 3 under SORA: 
There was no allegation of force in the marine 
either, who met a girl in a bar, a young girl 17, 
there was no force there. 
16 
Notably, the People were not asking the Court to make a downward 
departure from the RAI calculation, but were advising the Court that the evidence 
required a recalculation of Appellant's risk level based on the RAI factors. See Sex 
Offender Registration Act: 
Risk Assessment Guidelines and Commentary, 
Commentary (2006) at 4-5, ¶¶ 5, 6. 
41 
EFTA00792389

A.90:13-15 (Tr.).17 The Court's subjective comparison of Appellant's 
case to some unidentified, unrelated case was improper and highly 
irregular, and it clearly interfered with the Court's duty to make an 
assessment based on the law. 
Similarly, in response to an argument by counsel regarding the 
implications that a Level 3 assignment would have on Appellant, who 
does not actually reside in New York, the Court abandoned any 
semblance of judicial objectivity by dismissively suggesting that he 
should "give up his New York home if he does not want to come every 90 
days." A.93:18-19 (Tr.). Rather than giving reasoned consideration to 
whether Appellant's residence outside of New York might be a relevant 
factor in its overall risk assessment (such as for a downward departure 
from an RAI calculation), the Court improperly allowed its judgment to 
be clouded by apparent personal disdain for Appellant. 
Furthermore, the Court's apparent distaste for Appellant has 
eliminated any likelihood that Appellant will receive a fair 
redetermination hearing should this matter be remanded back to the 
17 
Significantly, the Court in fact scored 10 points against Appellant for forcible 
compulsion, despite the parties' agreement that there was no legitimate evidentiary 
basis to score Appellant for the use of force or violence. See A.94:7-8 ('Fr.). 
42 
EFTA00792390

same Justice. Indeed, this Court has recognized that reassignment of a 
matter to a different Justice following appeal is warranted and 
appropriate where the apparent impartiality of the lower court has been 
legitimately questioned, as it most certainly has here. See, e.g., People 
v. Rampino, 55 A.D.3d 348, 349 (1st Dep't 2008) (remanding 
resentencing matter to a different Justice where the "appearance of 
fairness and impartiality [was] compromised by the actions of the 
Justice to whom defendant's application was assigned"); Fresh Del 
Monte Produce N.V. v. Eastbrook Caribe, 40 A.D.3d 415, 421 (1st Dep't 
2007) (remanding matter to a different Justice where "a reasonable 
concern about the appearance of impartiality" had been raised on 
appeal). 
Accordingly, should this Court deem remand the only 
appropriate mechanism for recalculating Appellant's risk assessment 
level, Appellant respectfully asks that the SORA proceeding be 
reassigned to a different Justice. 
In sum, a court only has discretion to go beyond the factors 
outlined in the SORA guidelines in evaluating a person's risk level 
where justified by clear and convincing evidence. See People v. Sherard, 
73 A.D.3d 537, 537 (1st Dep't 2010) (citing People v. Miller, 854 N.Y.2d 
43 
EFTA00792391

138 (2008), lu. denied 10 N.Y.3d 711, 860 N.Y.S.2d 483 (2008)) (holding 
that where a court exercises discretion to depart from the evidence-
based scoring of an RAI, the court must base such departure on "clear 
and convincing evidence of aggravating factors to a degree not taken 
into account" in the RAI); see also Sex Offender Registration Act: Risk 
Assessment Guidelines and Commentary, Commentary (2006) at 4-5, ¶¶ 
5, 6. Here, the Court's SORA determination, made in the express 
absence of clear and convincing evidence, 18 constituted an abuse of 
discretion, warranting reversal of the Court's Level 3 determination and 
Order. 
Moreover, given the Court's demonstrated lack of judicial 
objectivity toward Appellant, should remand be required, Appellant 
respectfully requests that this matter be reassigned to a different 
Justice in the Supreme Court. 
18 
The Court did not -- and could not -- cite any factors within or outside of the 
Board's consideration, proven by clear and convincing evidence, that would justify a 
Level 3 determination under RAI scoring or constitute lawful grounds for an 
upward departure. See A.82 (Tr. generally). Instead, the Court fully adopted the 
Board's calculation, scoring Appellant a presumptive rating of Level 3, without , 
meaningful inquiry into any of the underlying allegations or any consideration of 
other evidence which could bear upon Appellant's risk level. See A.93:21, 94:6-95:9, 
96:11-13 (Tr.). 
44 
EFTA00792392

III. THE COURTS ORDER DOES NOT COMPLY WITH THE 
MANDATES OF SORA AND CONSTITUTIONAL DUE 
PROCESS AND MUST BE VACATED. 
Finally, the Court's Order determining Appellant to be a Level 3 
sex offender is itself facially defective in numerous regards and should 
be vacated as legally invalid. In addition, the Court's failure to set forth 
any factual basis for its Level 3 determination renders the Order 
constitutionally infirm, warranting reversal on federal due process 
grounds as well. 
SORA provides that it is the "duty of the court" to determine, 
pursuant to the SORA guidelines, both the "level of notification" 
required of an offender and whether any designations defined in section 
168-a(7) apply. Correction Law §§ 168-k(2), 168-n(2). In addition, 
SORA mandates that the court "render an order" which sets forth "its 
determinations and the findings of fact and conclusions of law on which 
the determinations are based." Correction Law §§ 168-k, 168-n. 
Here, the Court's compliance with these requirements fell 
woefully short. The only order issued by the Court in this matter was a 
standard boilerplate form where the Court circled a pre-printed number 
and provided a signature and date. See A.4 (Order Appealed From, 
45 
EFTA00792393

dated Jan. 18, 2011). 
Indeed, upon close examination of the only 
"order" in this matter, it appears that the form Order is actually 
intended to be a cover sheet to accompany a more formal order, with 
written findings of fact and conclusions of law, upon submission to the 
Division. See A.4 (Order Appealed From, dated Jan. 18, 2011) (stating, 
"A copy of the order setting forth the risk level and designation 
determinations, and the findings and conclusions of law on which such 
determinations are based, shall be submitted to the Division of 
Criminal Justice Services' Sex Offender Registry Unit by the Court. In 
addition, please complete and attach this form indicating the offender's 
risk level and designation to the Court's order."). Yet this legally 
insufficient Order was served on Appellant following the SORA 
proceeding and was sent to the Division so that the Level 3 
determination could be executed and enforced. See A.78 (Letter of 
Supreme Court, dated Jan. 19, 2011). 
The appellate courts have consistently held that cursory, non-
specific "findings" issued after SORA hearings -- including the 
wholesale adoption of a Board recommendation or recitation of RAI 
factors without further explanation, as the Court offered here -- are 
46 
EFTA00792394

legally insufficient under SORA. See, e.g. People v. Strong, 77 A.D.3d 
717, 717-18 (2d Dep't 2010) (reversing SORA order issued without 
findings of fact and conclusions of law, where court relied on RAI but 
failed to introduce the RAI in evidence or indicate any evidence relied 
upon); People v. Gilbert, 78 A.D.3d 1584, 1584 (4th Dep't 2010) (holding 
that the SORA court's conclusory recitation that it reviewed the parties' 
submissions and was adopting the Board's case summary and 
recommendation was insufficient to fulfill SORA's statutory mandate); 
People v. Miranda, 24 A.D.3d 909, 910-11 (3d Dep't 2005) (holding that 
the court's adoption of the Board's RAI scores and "generic listing of 
factors" failed to "fulfill the statutory mandate" of SORA and precluded 
"meaningful appellate review of the propriety of the court's risk level 
assessment"). 
In addition, the Order in this case is constitutionally deficient, in 
that the Court's failure to set forth any factual or legal bases for its 
Level 3 determination falls short of the minimum due process rights 
guaranteed by the U.S. Constitution. In the landmark case of Goldberg 
v. Kelly, the U.S. Supreme Court held that, in relevant part, to 
demonstrate compliance with the procedural due process requirement 
47 
EFTA00792395

that the decision maker's conclusion rest solely on the legal rules and 
evidence adduced at hearing, "[the] decision maker should state reasons 
for his determination and indicate evidence he relied on, though his 
statement need not amount to a full opinion or even formal findings of 
fact and conclusions of law." Goldberg u. Kelly, 397 U.S. 254, 271 (1970) 
(internal citations omitted).19 
In short, the minimal due process 
requirement that the order set forth the basis for the court's 
determination is designed to provide some assurance that the court's 
conclusion rested on sufficient reliable evidence--which in Appellant's 
case, it did not. 
The utterly deficient Order issued by the Court in this matter 
itself provides an independent basis for reversal of the Court's Level 3 
determination, on both state statutory and federal constitutional 
grounds. 
19 
SORA, by specifically requiring the Court to issue findings of fact and 
conclusions of law to support its determination, therefore sets forth a higher 
standard than is required by federal due process. See Correction Law §§ 168-k, 168-
n (requiring the court to "render an order setting forth its determinations and the 
findings of fact and conclusions of law on which the determinations are based'). 
48 
EFTA00792396

CONCLUSION 
For the reasons stated herein, Appellant Jeffrey E. Epstein 
respectfully submits that the January 18, 2011 Order of the New York 
Supreme Court determining Appellant Jeffrey E. Epstein to be a Level 
3 sex offender, without designation, should be vacated, and Appellant's 
SORA level should be recalculated -- either by this Court based on the 
present record or upon remand to a different Justice in the lower court 
-- in accordance with the law, based solely on the evidence that can be 
proven by clear and convincing evidence, to wit, the undisputed conduct 
encompassed by Appellant's registerable crime of conviction. 
February 22, 2011 
Respectfully submitted 
Sandra Lynn Musumeci 
KIRKLAND & ELLIS LLP 
601 Lexington Avenue 
New York, New York 10022 
Telephon 
Facsimile
Counsel for Defendant-Appellant 
Jeffrey E. Epstein 
49 
EFTA00792397

PRINTING SPECIFICATION STATEMENT 
This computer generated brief was prepared using a 
proportionally spaced typeface. 
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The total number of words in the brief, inclusive of point headings 
and footnotes and exclusive of pages containing the table of contents, 
table of authorities, and printing specification statement is 10,522. 
50 
EFTA00792398

CERTIFICATE OF DIGITAL-SUBMISSION COMPLIANCE 
The undersigned hereby certifies that: 
(1) all required privacy redactions have been made and, with the 
exception of those redactions, every document submitted in Digital 
Form or scanned PDF format is an exact copy of the written document 
filed with the Clerk; and 
(2) the digital submissions have been scanned for viruses with the 
most recent version of a commercial virus scanning program (McAfee 
Enterprise 8.5 Virus Scan, updated as of March 9, 2009) and, according 
to the program, are free of viruses. 
Jay PyLefkowitz, P.C. 
Sandra Lynn Musumeci 
KIRKLAND & ELLIS LLP 
601 Lexington Avenue 
New York, New York 10022 
Telephone 
Facsimile: 
51 
EFTA00792399