EFTA01077101

To be Argued By: 
JAY P. LEFKOWITZ 
New York County Clerk's Index No. 30129/2010 
Nein 'Nark $upnme Gantt 
APPELLATE DIVISION-FIRST DEPARTMENT 
she 
PEOPLE OF THE STATE OF NEW YORK, 
—against—
JEFFREY E. EPSTEIN, 
Respondent, 
Defendant-Appellant. 
BRIEF FOR DEFENDANT-APPELLANT 
JAY P. LEFKOWITZ 
SANDRA LYNN MUSUMECI 
KIRKLAND & ELLIS LLP 
601 Lexington Avenue 
New York, New York 10022 
jay.lefkowitz@kirkland.corn 
sandra.musumeci@kirkland.com 
Attorneys for Defendant-Appellant 
REPRODUCED ON RECYCLED PAPER 
EFTA01077101

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 
EFTA01077102

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 
ii 
EFTA01077103

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 u. 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) 
34 
People u. 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 
EFTA01077104

People u. Dominie, 
42 A.D.3d 589 (3d Dep't 2007) 
19 
People u. Donk, 
39 A.D.3d 1268 (4th Dep't 2007) 
31 
People u. 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 u. Jimenez, 
178 Misc. 2d 319, 679 N.Y.S.2d 510 (Sup. Ct. Kings Cty. 1998) 
18 
People u. Johnson, 
11 N.Y.3d 416 (2008) 
18 
People v. Jordan, 
31 A.D.3d 1196 (4th Dep't 2006) 
39 
People v. Judson, 
50 A.D.3d 1242 (3d Dep't 2008) 
27 
People u. Mabee, 
69 A.D.3d 820 (2d Dep't 2010) 
27 
People u. Mingo, 
12 N.Y.3d 563 (2009) 
26 
People u. Miranda, 
24 A.D.3d 909 (3d Dep't 2005) 
47 
People u. Rampino, 
55 A.D.3d 348 (1st Dep't 2008) 
43 
People u. Redcross, 
54 A.D.3d 1116 (3d Dep't 2008) 
31 
People u. Sherard, 
73 A.D.3d 537 (1st Dep't 2010) 
43 
iv 
EFTA01077105

People u. Smith, 
66 A.D.3d 981 (2d Dep't 2009) 
24 
People u. Strong, 
77 A.D.3d 717 (2d Dep't 2010) 
47 
People u. 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 
EFTA01077106

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 
EFTA01077107

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 
EFTA01077108

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 
EFTA01077109

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 "'Pr." followed by the applicable page and line citation. 
3 
EFTA01077110

I. 
The Underlying Offense 
On June 30, 2008, Appellant pleaded guilty in the Circuit Court 
for Palm Beach County, Florida under an Information to the charge of 
Procuring a Person Under 18 for Prostitution, Fla. Stat. § 796.03, an 
offense which required him to register under Florida's sexual offender 
registration statute, Fla. Stat. § 943.0435. See A.31 (Information for 
Procuring Person Under 18 for Prostitution, dated June 26, 2008); A.32 
(Guilty Plea, dated June 30, 2008). This single registerable charge was 
brought in connection with a consensual, commercial arrangement in 
which Appellant received massages and engaged in sexual conduct with 
a young woman who was over the age of consent under New York 
law but just under 18 when the offense in the Information occurred 
back in 2005. See A.53 (Letter from M. Weinberg, dated Aug. 16, 2010, 
at 1, 3). 
Appellant concurrently pleaded guilty to an Indictment 
charging him with one count of Felony Solicitation for Prostitution, Fla. 
Stat. §§ 796.07(2)(f), (4)(c) -- a solicitation offense which does not include 
any elements of sexual contact with underage women and which is not 
registerable under either Florida or New York law. See A.26 (2006 
Grand Jury Indictment of Felony Solicitation of Prostitution); A.32 
4 
EFTA01077111

(Guilty Plea, dated June 30, 2008); Fla. Stat. § 943.0435; Correction 
Law § 168-a(2)(a). 
Despite an extensive investigation by Florida 
prosecutors regarding various other complaints alleged against him and 
reported in police paperwork, Appellant was never charged with any 
other crimes or prosecuted on allegations made by any other 
complainants. 
See A.26 (2006 Grand Jury Indictment of Felony 
Solicitation of Prostitution); A.31 (Information for Procuring Person 
Under 18 for Prostitution, dated June 26, 2008); A.83:23-84:6, 85:19-
86:1, 90:16-91:15, 95:14-18 (Tr.). 
As a result of his two concurrent Florida convictions -- the first 
and only criminal convictions of his life -- Appellant was sentenced to 
consecutive terms of 12 months and 6 months incarceration in a Palm 
Beach County Detention Facility, followed by 12 months of Community 
Control supervision. See A.32 (Guilty Plea, dated June 30, 2008); A.34 
(Sentence, dated Jun. 30, 2008). Appellant satisfactorily served 13 
months of incarceration (during which time he was granted permission 
to participate in the Sheriffs work release program) and completed a 
subsequent period of 12 months Community Control (during which the 
Court trusted him, for business purposes, to travel outside of Florida 
5 
EFTA01077112

with prior notice and approval by his supervising probation officer) 
without incident. 
See A.49 (Letter from Florida Department of 
Corrections, dated Jul. 21, 2010); A.50 (Letter from Palm Beach 
Sheriffs Office, dated Aug. 12, 2010); A.51 (Letter from J. Goldberger, 
dated Aug. 12, 2010); A.48 (Order Granting Motion for Travel, dated 
Dec. 18, 2009); A.53 (Letter from M. Weinberg, dated Aug. 16, 2010, at 
4). Appellant has had no subsequent instances of misconduct of any 
kind. See A.53 (Letter from M. Weinberg, dated Aug. 16, 2010, at 1). 
II. 
Sex Offender Registration 
As required under Florida law in connection with his conviction 
for Procuring a Person Under 18 for Prostitution, Fla. Stat. § 796.03, 
Appellant registered as a sex offender with Florida authorities and was 
designated at the lowest level under that state's sex offender 
registration act. See A.88:6-15 (Tr.); see also A.51 (Letter from J. 
Goldberger, dated Aug. 12, 2010); Fla. Stat. §§ 775.21, 943.0435. 
Appellant also registered in his home jurisdiction of the U.S. Virgin 
Islands (where Appellant maintains his primary residence and actually 
lives), where authorities reviewed Appellant's Florida offenses and 
6 
EFTA01077113

determined that he is only subject to that jurisdiction's lowest reporting 
obligations. See A.88:1-5 (Tr.); see also 14 V.I.C. §§ 1722(b), 1724(d), (e). 
Although he does not actually reside in New York, before the 
completion of his term of Community Control, Appellant notified the 
New York State Division of Criminal Justice Services ("the Division") of 
his registerable Florida conviction and his ownership of a secondary 
residence in New York. 
See A.88:21-24 (Tr.). 
Since May 2010, 
Appellant has been registered with the Sexual Offender Monitoring 
Unit (SOMU) of the New York Police Department. See A.88:21-89:3 
(Tr.). 
III. The Board's Recommendation 
On or about August 26, 2010, Appellant received notice that a 
SORA hearing had been scheduled to determine a risk assessment level, 
accompanied by a copy of the recommendation of the Board. See A.67 
(Letter 
from 
Supreme 
Court, 
dated 
Aug. 
26, 
2010); 
A.65 
(Recommendation of Board of Examiners of Sex Offenders ("Board 
Recommendation").). In stark contrast to the other jurisdictions to have 
considered Appellant's Florida convictions (including Florida), the 
Board recommended that Appellant be assigned the highest risk level --
7 
EFTA01077114

Level 3, representing a high risk of repeat offense -- without further 
designation.3 See A.67 (Letter from Supreme Court, dated Aug. 26, 
2010); A.65 (Board Recommendation); see also Correction Law § 168-
1(6)(c). 
The Board's recommendation included a Risk Assessment 
Instrument (RAI) that improperly calculated a total risk factor score of 
130. See A.65 (Board Recommendation). Almost all of the points scored 
by the Board were based on "Current Offense" factors,4 including: 10 
points for "Use of Violence" (forcible compulsion); 25 points for "Sexual 
Contact with Victim" (sexual intercourse and deviate sexual 
intercourse); 30 points for "Number of Victims" (3 or more); 20 points for 
"Duration of Offense Conduct with Victim" (continuing course of sexual 
misconduct); and 20 points for "Age of Victim" (11 through 16). See A.65 
(Board Recommendation). The Board's RAI did not assign Appellant 
3 
SORA requires the Board to recommend an offender's notification level of 1, 
2, or 3, pursuant to Correction Law § 168-1(6), and to recommend whether any 
designations defined in Correction Law § 168-a(7) apply. See Correction Law 
§§ 168-k(2), 168-n(2). 
4 
The Board also assessed Appellant 5 points for "Criminal History," even 
though the Board itself noted that it was assessing points "absent specific 
information." See A.65 (Board Recommendation). Appellant submits that this 
scoring is unsupported by the Record. 
8 
EFTA01077115

any points under the "Post-Offense 
Behavior" and "Release 
Environment" categories. See A.65 (Board Recommendation). 
In its "Case Summary," the Board noted that Appellant was 
convicted of just two Florida sex offenses: (1) Procuring a Person Under 
18 for Prostitution, and (2) Felony Solicitation of Prostitution.5 See A.65 
(Board Recommendation). The Board then aggregated into just over a 
single page a host of uncharged allegations made by "numerous 
females," including "female participants [who] were age 18 or older," 
regarding "massages and unlawful sexual activity" that allegedly took 
place 
at 
Appellant's 
Florida 
residence. 
See 
A.65 
(Board 
Recommendation). The case summary referred to "vaginal intercourse" 
and various other forms of sexual contact allegedly taking place without 
connecting specific females to such allegations, and more significantly, 
without identifying the age of the participants -- some of whom the 
Board noted were "age 18 or older" -- specifically at the time of such 
5 
Only one of these charges -- the procurement charge -- is registerable under 
SORA, and that charge is registerable under SORA only because it is registerable in 
Florida. See Correction Law § 168-a(2)(d)(ii). (Notably, the New York cognate of 
this offense, Promoting Prostitution in the Third Degree, N.Y. Penal Law § 230.25, 
is not itself a registerable offense under SORA. See Correction Law § 168-a(2).) The 
charge of Felony Solicitation of Prostitution, Fla. Stat. § 796.07(2)(0, (4)(c) -- which 
does not include any age-related elements and pertains solely to consensual, 
commercial conduct -- is not a registerable offense under either Florida or New York 
law. See Fla. Stat. § 943.0435; Correction Law § 168-a(2)(a). 
9 
EFTA01077116

alleged conduct. 
See A.65 (Board Recommendation). 
Although 
Appellant was only convicted of two prostitution-related offenses and 
was neither charged with nor convicted of any rape, sexual abuse, or 
violent offenses,6 the case summary highlighted hearsay-based claims 
in police paperwork -- namely a probable cause affidavit signed by a 
Palm Beach Police detective that did not result in any of the charges 
sought -- involving alleged sexual abuse of underage girls and an 
alleged forcible rape (which claims were found by the Florida 
prosecutors to be unreliable to support charges against Appellant), and 
assessed points against Appellant based on these unprosecuted 
allegations. See A.65 (Board Recommendation). 
The Board recognized Appellant's conduct on Community Control 
as satisfactory and noted that he has no history of substance abuse. See 
A.65 (Board Recommendation). The Board also credited Appellant with 
accepting 
responsibility 
for 
his actions. 
See 
A.65 
(Board 
Recommendation). 
6 
The only registerable charge for which Appellant was prosecuted and 
convicted pertained to consensual, commercial, non-violent interaction with one 
woman, A.D., who was 17 years old (and therefore over the age of consent in New 
York but not in Florida) at the time of the relevant conduct. See A.31 (Information 
for Procuring Person Under 18 for Prostitution, dated June 26, 2008); A.53 (Letter 
of M. Weinberg of Aug. 16, 2010, at 1, 3); £91:20-92:7 (Tr.). 
10 
EFTA01077117

IV. Pre-Hearing Investigation By the District Attorney 
The SORA hearing, originally scheduled for September 15, 2010, 
was adjourned on consent of the parties until January 18, 2011 to 
provide the New York District Attorney ("the People"), which 
represented the State of New York at the SORA hearing, an 
opportunity to investigate Appellant's Florida convictions and assess 
the validity of the Board's recommendation. See A.81 (Handwritten 
Notations on Court Jacket); A.89:22-90:8 (Tr.). 
As part of their 
investigation, the People were in contact with members of the Palm 
Beach County State's Attorney's Office to understand the investigation 
and prosecution of the allegations at issue in this SORA matter. See 
A.83:14-84:19 (Fr.). 
Based on these interactions with Florida 
prosecutors, the People determined that they could not rely on the 
Board's recommendation and the underlying probable cause affidavit 
(which the Florida prosecutors determined not to be reliable, and which 
therefore certainly could not satisfy the heightened standard of clear 
and convincing evidence), and would score Appellant based only on the 
conduct for which he was actually prosecuted, and not on the 
11 
EFTA01077118

unprosecuted allegations in the probable cause affidavit cited by the 
Board. See A.83:14-84:19 (Tr.). 
Although the People presented Appellant a new SORA risk 
assessment instrument (RAI) immediately before the SORA hearing 
itself, scoring Appellant as a Level 1, the People apparently did not 
present their proposed alternative RAI or any other written submission 
setting forth their departure from the Board's recommendation to the 
Court, as no such statement is in the Court's file. 
See Appendix 
generally. 
V. 
SORA Hearing 
On January 18, 2011, a SORA hearing was conducted in New 
York Supreme Court, Criminal Term, New York County, Part 66 before 
Hon. Ruth Pickholz. 
See A.81 (Handwritten Notations on Court 
Jacket); A.82 (Tr. generally). At the hearing, the People made a record 
that based on their investigation and contact with the Florida 
authorities who handled Appellant's prosecution, the probable cause 
affidavit underlying the Board's recommendation could not be relied 
upon. See A.83:14-18 (Tr.). Specifically, the People informed the Court 
that many of the women referenced as complainants in the police 
12 
EFTA01077119

affidavit were not cooperative with Florida prosecutors, and 
accordingly, the Florida authorities chose not to prosecute any 
allegations other than those reflected by the two offenses to which 
Appellant ultimately pleaded guilty. See A.84:2-6, 14-19 (Tr.). The 
People further noted that in light of Florida's decision not to prosecute 
the majority of the allegations in the affidavit, (and under the SORA 
statute and guidelines), only the conduct pertaining to the sole 
registerable crime for which Appellant was charged and to which he 
pleaded -- Procuring a Person Under 18 for Prostitution, involving a 
single complainant -- could be proven and should be considered in 
evaluating Appellant's SORA score. See A.85:11-16, 85:24-86:1 (Tr.). 
Counsel for Appellant corroborated the record made by the People 
that the Florida Assistant State Attorney who prosecuted Appellant 
determined, after a full investigation, that there were "no victims" and 
that the only crime that could be presented to the grand jury was the 
single solicitation offense to which Appellant pleaded guilty. 
See 
A.89:22-90:21, 95:12-18 (Tr.). 
Appellant disputed many of the 
allegations contained in the Board's case summary, both with respect to 
specific facts (such as the suggestion of any forcible compulsion and the 
13 
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