EFTA01085713

District Attorney's Office was aware of the history of Appellant's case in 
Florida, and it was based on that history (and not in spite of it) that the 
People appropriately represented to the Court that the uncharged 
allegations in the Probable Cause Affidavit were not reliable and could 
not serve as a lawful basis for a Level 3 designation.3
3 
Similarly, Appellant does not challenge the notion, underscored by the People 
in their brief, that a probable cause affidavit or other documents containing hearsay 
may constitute "reliable evidence" and even clear and convincing evidence for 
purposes of a SORA hearing. See Resp. Br. at 36, 40; see also People v. Rhodehouse, 
77 A.D.3d 1032, 1033 (3d Dep't 2010) (to establish appropriate risk level, the People 
bear the burden of producing clear and convincing evidence, which may consist of 
reliable hearsay evidence). However, where, as here, the hearsay-based Probable 
Cause Affidavit is proven inaccurate by more reliable primary-source evidence 
(including the recorded witness statements which it was supposed to have 
summarized), and furthermore was deemed by the investigating prosecutor to be so 
unreliable as to not warrant arrest or prosecution for the majority of offenses 
alleged therein, then a court abuses its discretion in adopting that affidavit as a 
basis for scoring under SORA. CITE. 
The People itemize various theoretical "indicia of reliability" in their brief 
(including statements made under oath, level of detail, "identical" witness accounts, 
and incriminating admissions) as they attempt to rationalize their complete about-
face as to the reliability of the Board materials. JDO WE NEED TO STATE THAT 
THE WITNESS ACCOUNTS ARE "IDENTICAL" BECAUSE THEY ARE 
SUMMARIZED BY THE SAME DETECTIVE FOR THE PURPOSE OF 
ATTEMPTING TO DEMONSTRATE THAT THEY ARE CONSISTENT. EVEN 
THOUGH CAREFUL REVIEW OF THE ACTUAL ACCOUNTS SHOWS THAT 
THEY ARE NOT CONSISTENT. THE SO CALLED CONSISTENCY IS THE SPIN 
THAT RECAREY PUT IN HIS PROBABLE CAUSE AFFIDAVIT! See Resp. Br. at 
36-38, 40-46. 
However, it is hornbook law that even hearsay that may be 
"presumptively reliable" under a statute like SORA is per se not reliable where it is 
actually proven false, and directly contradicted by non-hearsay evidence. CITE. 
The People acknowledge as much in their citation and repeated reference to People 
v. Mingo, 12 N.Y.3d 563, 577 (2009) (noting the unreliability of a victim statement 
where it is "equivocal, inconsistent with other evidence, or seems dubious in light of 
other evidence in the record") (cited at Resp. Br. at 37). It stands to reason that 
here, where all the witness statements had been sworn and tape-recorded (as the 
21 
EFTA01085733

Significantly, the experienced Florida sex crimes prosecutor who 
investigated and evaluated the allegations in the Probable Cause 
Affidavit discounted almost all of them and, based on her assessment of 
the allegations, witness credibility, and other factors, in an exercise of 
prosecutorial discretion, she determined that the only indictable charge 
was one count of Felony Solicitation for Prostitution, Fla. Stat. § 796.07. 
No charge of rape or sexual contact with a minor was ever charged or 
prosecuted in connection with any allegations made against Appellant, 
nor was Appellant even arrested on such a claim. —Moreover, the 
decision to indict Appellant for only one offense was made in 2006, well 
before any plea negotiations had been resolved. See A.29 (2006 Grand 
Jury Indictment of Felony Solicitation of Prostitution). [WE HAVE TO 
BE CAREFUL HERE. WE DON'T PREVIOUSLY TALK ABOUT THE 
FACT THAT THERE WAS INITIALLY ONLY ONE INDICTMENT. I 
KNOW THAT RESPONDENT DOES THIS IN RESPONDENT'S 
BRIEF, BUT DO WE REALLY WANT TO POINT OUT IN OUR BRIEF 
THAT THERE WAS A SECOND INFORMATION LATER (AFTER 
People acknowledge, see Resp. Br. at 41) but those recordings differ materially from 
how the statements are described in an affidavit, that affidavit must be discredited 
and rejected as inherently unreliable. See Section IV, infra. 
22 
EFTA01085734

FBITUSAO INVESTIGATION). 
DOESN'T THIS LEAD INTO THE 
FACT THAT AFTER THE FEDS GOT INVOLVED AND DID THEIR 
INVESTIGATION JE AGREED TO PLEA TO THE REGISTRABLE 
OFFENSE. IM NOT SURE WE WANT TO EMPHASIZE THAT ONLY 
SOLICATION 
OFFENSE 
FIRST 
BECAUSE 
IT 
BEGS 
THE 
QUESTION OF HOW IT CAME TO PASS THAT JE THEN PLEAD 
GUILTY TO THE PROCUREMENT OFFENSE) -That Appellant was 
not prosecuted on the overwhelming majority of allegations in the 
Probable Cause Affidavit does not reflect a "negotiated plea 
compromise," as Respondents now suggest on appeal, but rather, was 
based on the dearth of reliable evidence to substantiate an abundance of 
baseless claims. Given this history, of which the People were well 
aware given their communications with the Palm Beach County State 
Attorney's Office and their review of that office's files, the conclusion 
that Appellant should not be scored under SORA based on the 
uncharged, unreliable allegations contained in the Probable Cause 
Affidavit was appropriate and indeed compelled under SORA and its 
guidelines. 
23 
EFTA01085735

The case of People v. Johnson, 77 A.D.3d 548 (1st Dep't 2010), so 
heavily relied upon by the People with respect to this point, does not 
counsel differently. In Johnson, this Court upheld assessing points for 
forcible compulsion against a defendant who pleaded guilty to statutory 
rape, even though the defendant was not convicted of forcible rape, 
because the allegation of forcible compulsion was "amply supported" by 
inclusion of the victim's sworn statement that she was forcibly 
restrained by two unapprehended accomplices within the Information to 
which the defendant pled. Id. at 549. Indeed, although not an element 
of the crime of conviction, the allegations of forcible compulsion 
persisted throughout Johnson's prosecution; forcible compulsion was 
alleged in the felony complaint by which the prosecution commenced 
and was included in the information to which Johnson ultimately pled 
guilty. See id. at 550-51 (J. McGuire concur.). 
In contrast, in the instant case, Appellant was never charged with 
any offense other than two prostitution offenses, nor was any specific 
allegation of forcible compulsion, sexual intercourse, or sexual conduct 
with a female under 17 ever included in any accusatory instrument to 
which Appellant pled guilty or on which Appellant was prosecuted. To 
24 
EFTA01085736

the contrary, the Florida sex crimes prosecutor made the affirmative 
decision not to proceed with such charges at any point. In short, 
Appellant's case, where certain allegations are not substantiated, 
disappear entirely from the case after the initial police report, and are 
never prosecuted at all, is precisely the circumstance contemplated by 
the SORA Guidelines' instruction that where a certain offense was not 
charged or indicted, "the Board or court should be reluctant to conclude 
that the offender's conduct involved" that particular offense. See Sex 
Offender Registration Act: 
Risk Assessment Guidelines and 
Commentary, Commentary (2006), at 5, ¶ 7. Thus, the People's position 
at the SORA hearing was informed, well-reasoned, and above all, the 
only correct one under the law. 
[DOES ALL OF THIS SOMEHOW 
INVITE RESPONDENT TO ARGUE AT HEARING OF THIS APPEAL 
THAT OUR ARGUMENT NEGLECTS TO TAKE INTO ACCOUNT 
THAT AFTER THE STATE INVESTIGATION AND CHARGING 
DECISION. THERE WAS A FEDERAL INVESTIGATION WHERE 
THE FEDS CREATED A LIST OF NUMEROUS "VICTIMS" WHO 
WERE ALLEGEDLY UNDERAGE WHEN THEY INTERACTED WITH 
JE. AND IT WAS THAT INVESTIGATION THAT RESULTED IN JE 
25 
EFTA01085737

PLEADING GUILTY TO AN OFFENSE THAT WAS NOT EVEN 
CHARGED BY THE STATE IN ORDER TO AVOID FEDERAL 
PROSECUTION? 
III. THE COURT BASED ITS LEVEL 3 DETERMINATION 
UPON 
IMPROPER 
CONSIDERATIONS 
AND 
IN 
VIOLATION 
OF THE 
MANDATES OF SORA AND 
CONSTITUTIONAL DUE PROCESS. 
As previously set forth in detail in Appellant's Brief and further 
explained herein, the Court's Order adjudging Appellant to be a Level 3 
offender is unsupported by the requisite clear and convincing evidence 
and was rendered in clear violation of SORA and its guidelines as well 
as Appellant's federal constitutional rights. See Correction Law §§ 168-
k(2), 168-n(2); see also Sex Offender Registration Act: Risk Assessment 
Guidelines and Commentary, Commentary (2006), at 5, ¶ 7 (Points 
should not be assessed for a factor . . . unless there is clear and 
convincing evidence of the existence of that factor"); People v. Johnson, 
11 N.Y.3d 416, 421 (2008) (holding that courts must apply a clear and 
convincing 
evidence 
standard 
when 
considering 
a 
Board 
recommendation and making its SORA determination); Doe v. Pataki, 3 
F.Supp. 2d 456, 471-72 (S.D.N.Y. 1998) (holding federal due process 
under SORA is only satisfied where each risk factor is supported by 
26 
EFTA01085738

clear and convincing evidence). Despite the consensus of the People and 
Appellant at the SORA hearing that the majority of allegations in the 
Board materials could not be proven by clear and convincing evidence 
and should not be scored in calculating Appellant's risk level, the 
hearing court rested its Level 3 determination upon those unproven 
allegations, without hearing any evidence on which to base a de novo 
finding that the Board materials satisfied the statutory standard. 
CITE. 
In addition, implicit in its wholesale adoption of the Board 
recommendation is that the Court improperly factored into Appellant's 
risk assessment conduct that is expressly not scoreable under SORA. 
See A.93-A.96. By its terms, SORA requires the Board, the District 
Attorney, and the Court to calculate a risk assessment based only on 
provable conduct that is specifically scoreable under SORA. See CITE. 
For example, as previously noted, consensual prostitution-related 
conduct with women aged 17 and over is not registerable under SORA. 
See Correction Law § 168-a(2)(a)(i). 
Yet the hearing court clearly 
assessed points against Appellant for consensual prostitution-related 
27 
EFTA01085739

conduct with 17-year-olds? Likewise, SORA provides no authority to 
assess points based on massages that do not involve "sexual conduct" as 
defined under the Penal Law. See generally Correction Law § 168 et 
seq.: Thus, whether a number of different females repeatedly came to 
Appellant's Florida home, provided him with massages, and received 
money in exchange for their services is not material to the calculation of 
Appellant's risk assessment under SORA. Rather, what is material for 
purposes of determining Appellant's SORA risk level, as a matter of 
law, is whether Appellant engaged in conduct that is actually scoreable 
under SORA and can be proven by clear and convincing evidence.5
In other words, to establish scoreable conduct for which points 
could be assessed under SORA, the evidence would need not merely to 
4 
Upon being reminded that consensual sexual intercourse with a 17-year-old 
is not registerable conduct under SORA, see Correction Law § 168-a(2)(a)(i), (d)(i), 
the hearing court declared, "She is a child" (referring to the female named as "A.D." 
in the Board materials). See A.91-A.93 (Tr.). The hearing court then decided, 
without any evidentiary basis, that A.D. was actually only 16 when she was 
"procured" by Appellant, and notwithstanding the People's confirmation that the 
evidence established that A.D. was 17 at the time of provable sexual conduct, 
improperly scored points against Appellant for sexual conduct involving A.D.. See 
A.91-A.93 (Tr.). 
5 
By highlighting in their brief the number of women who told police that they 
provided Appellant with massages, and in certain instances, engaged in sexual 
conduct with Appellant, to justify a Level 3 determination, the People succumb to 
the same temptation that led the hearing court to issue a clearly erroneous and 
legally baseless order improperly adjudicating Appellant to be a Level 3 offender: 
allowing emotion and personal distaste for Appellant's conduct to outweigh the duty 
to adhere to the rule of law. 
28 
EFTA01085740

aggregate Appellant's conduct, but instead, to establish by clear and 
convincing evidence that, for example, he specifically engaged in a 
qualifying form of sexual conduct with a specific female at the time that 
female was a particular age, as required by the SORA guidelines for the 
particular factor at issues CITE. That the Board materials fail to 
establish the SORA factors with the required specificity renders the 
Level 3 calculation of the Board and the hearing court legally defective, 
and as such, the Level 3 adjudication cannot stand. 
Moreover, the hearing court failed to abide by the clearly 
delineated procedures set forth by SORA and its guidelines. 
See 
Correction Law §§ 168-k(2), 168-n(2) (outlining procedures for judicial 
6 
For example, with respect to the factor entitled, "Continuing Course of Sexual 
Misconduct," the SORA Guidelines set forth the specific findings that must be made 
by clear and convincing evidence to support an assessment of points, including the 
age of the victim and the timing of when multiple such instances of sexual conduct 
with the given underage victim occurred in relation to each other. See Sex Offender 
Registration Act: 
Risk Assessment Guidelines and Commentary, Commentary 
(2006), at 10. Although no such specific evidence was presented by the Board 
materials with respect to the timing of alleged sexual contact with any underage 
victim, the hearing court improperly assessed points against Appellant for this 
factor. See A.94 (Tr.) (scoring 20 points for "duration of offense, conduct with 
victim, continuing course of sexual misconduct"). Similarly, the hearing court 
scored Appellant for "number of victims:" despite the absence of any specific 
evidence proving by clear and convincing evidence that Appellant engaged in 
qualifying sexual conduct with three or more underage women at the time that each 
woman was underage. See A.94 (Tr.) (assessing 30 points for "three or more" 
victims, despite acknowledging that the People disputed the reliability of 
allegations involving all but one victim). 
29 
EFTA01085741

determination of risk level under SORA, including, inter alia, that "the 
state shall appear by the district attorney, ... who shall bear the burden 
of proving the facts supporting the determinations sought by clear and 
convincing evidence" and "the court shall render an order setting forth 
its determinations and the findings of fact and conclusions of law on 
which the determinations are based.") By flatly rejecting the position of 
the Assistant District Attorney assigned to vet the Board materials and 
advocate on behalf of the State, and instead adopting in full a Board 
recommendation that the People disclaimed as unreliable, the Court 
improperly substituted the Board's function as an advisory, 
recommendation-rendering agency, for the burden of proof imposed on 
the District Attorney and sound exercise of judgment and fact-finding 
expected from the Court.' Indeed, the court is not intended to be a mere 
rubber stamp for the Board; rather, the court's obligation to consider 
the sufficiency of evidence underpinning a Board recommendation 
serves as an important check in the SORA process, particularly when 
considering convictions and materials from out-of-state. 
See, e.g., 
7 
That the People have now, on appeal, reversed course and advocate the 
reliability of the Board materials to uphold the Court's improper Level 3 ruling does 
not remedy the Court's manifest disregard for statutorily prescribed procedures. 
30 
EFTA01085742

People v. Brown, 7 A.D.3d 831, 833 (3d Dep't 2004) (rejecting Board's 
case summary as not supported by clear and convincing evidence and 
finding that Board made no effort to verify the reliability of information 
contained in materials provided about defendant's out-of-state 
conviction); see also Matter of New York State Board of Sex Examiners v. 
Ransom, 249 A.D.2d 891, 891-92 (4th Dep't 1998) ("The Board ... serves 
only in an advisory capacity ... similar to the role served by a probation 
department in submitting a sentencing recommendation.") 
In sum, given the numerous and substantial legal and procedural 
flaws in the SORA hearing, the Court's Order assigning Appellant a 
risk level of 3, without proper evidentiary basis, should be vacated.8
IV. THE 
PEOPLE'S 
ATTEMPT 
TO 
INTRODUCE 
NEW 
"EVIDENCE" ON APPEAL IS BOTH IMPROPER AND A 
TACIT CONCESSION THAT THE COURT'S ORDER IS NOT 
SUPPORTED BY THE RECORD AS IT EXISTS. 
A. 
By Offering Novel Arguments Not Made at the SORA 
Hearing and Attempting to Introduce Materials 
Outside the Record, the People Acknowledge That 
The Court's Order Lacked Proper Legal Basis. 
8  
As previously noted in Appellant's brief, given the apparent compromised 
impartiality of the hearing court to Appellant, Appellant respectfully seeks 
reassignment of the matter to a different Justice should this Court deem remand 
necessary to recalculate Appellant's risk assessment level. See, e.g., People u. 
Rampino, 55 A.D.3d 348, 349 (1st Dep't 2008); Fresh Del Monte Produce N.V. u. 
East brook Caribe, 40 A.D.3d 415, 421 (1st Dep't 2007). 
31 
EFTA01085743

In opposing Appellant's appeal, the People endeavor to construct a 
post facto justification for the hearing court's Level 3 determination by 
offering numerous arguments, never actually made or even suggested 
by the hearing court, to rationalize why the vague and unsupported 
allegations in the Board materials should be deemed reliable (the 
People's 
disavowal 
of the Board 
materials at the hearing 
notwithstanding). See, e.g., Resp. Br. at 40-46. In addition, in what 
they term a preview of "[t]he People's evidence on remand," the People 
improperly inject into their brief factually inaccurate claims about 
Appellant's Florida case, purportedly to provide "a complete and 
accurate picture of the circumstances that gave rise to the two single-
count accusatory instruments" to which Appellant ultimately pled 
guilty. Resp. Br. at 62, n. 7. By so doing, the People themselves 
unwittingly concede that the hearing court's Order is not supported by 
the record as it currently stands. 
Specifically, absent clear and 
convincing evidence that the uncharged allegations were in fact credible 
and were only uncharged because of "aggressive negotiations" and plea 
bargaining -- a claim that Appellant vehemently contests, and in any 
event, was not only never raised at the SORA hearing or in the Board 
32 
EFTA01085744

materials, but was actually expressly disclaimed by the People on the 
records -- the hearing court should not have scored Appellant for the 
majority of allegations which formed the basis of the Level 3 Order. See 
Sex Offender Registration Act: 
Risk Assessment Guidelines and 
Commentary, Commentary at 5, ¶ 7 (2006). 
B. 
The People's Attempt to Introduce Materials Outside 
the Record Was Improper and Reference to Such 
Contentions Should Be Stricken. 
By previewing for the Appellate Court in their brief "the People's 
evidence on remand," see Resp. Br. at 62, n. 7, the People have 
improperly introduced materials dehors the record. See Mount Lucas 
Assoc., Inc. v MG Ref. and Mktg., Inc., 250 A.D.2d 245, 254 (1st Dep't 
1998) (noting "the basic precept that arguments in appellate briefs are 
to be based and appeals decided solely upon factual material before the 
court at nisi prius" and that "references to [non-record] material in 
briefs . . . is improper") [DIFFERENT CITE?]. 
The People's 
inappropriate attempt to enlarge the record should prompt this Court to 
strike the People's newly offered (and factually incorrect) contentions, if 
9 
The Assistant District Attorney clearly and correctly stated at the SORA 
hearing that Appellant's case was "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.84 (Tr.). 
33 
EFTA01085745

not the entire Respondent's brief in full. 
See 8 N.Y.Prac., Civil 
Appellate Practice § 12:21 ("Reliance in a brief upon material outside 
the record, or inclusion in the record of material not properly included 
in it, may result in the appellate division striking the brief and the 
record, or portions thereof.") [IS THIS TOO AGGRESSIVE / RISKY 
THAT COURT WILL STRIKE OUR REPLY?] [WOULD IT BE 
APPLIED TO STRIKE THE WHOLE REPY BRIEF. IF IT IS 
APPLIED. THEN IT WOULD BE APPLIED ONLY TO BOTH THE 
RESPONDENT AND APPELLANT 
NEWLY INTRODUCED 
MATERIALS, SO WOULDN'T THAT BE OK? ON THE OTHER 
HAND, IF YOU THINK THAT EVEN IF THE COURT STRIKES 
BOTH SIDES' NEWLY INTRODUCED MATERIALS, THE 
DAMAGE IS ALREADY DONE AND THIS WILL ONLY PROVIDE 
THE COURT WITH A JUSTIFICATION FOR IGNORING OUR 
CONTENTIONS, THEN MAYBE. JAY'S AND MARTY'S CALL.] 
C. 
Evidence Presented to the District Attorney's Office 
Prior to the SORA Hearing Established the 
Unreliability of the Board Materials. 
[MARTY, JAY, PLEASE LET'S HAVE YOUR THOUGHTS 
ABOUT ALLEGATIONS ABOUT THE GIRLS HERE. 
DOES IT 
34 
EFTA01085746

INVITE 
ARGUMENT 
AT 
THE 
HEARING 
BRINGING 
IN 
ADDITIONAL DETAILS ABOUT CONDUCT, IS IT PERSUASIVE, 
DOES IT PAINT JE AS NOT BEING REMORSEFUL AND BUY INTO 
THE ARGUMENT THAT THE RESPONDENT MADE THAT JE 
SHOULD RECEIVE EVEN A HIGHER SCORE BECAUSE HE IS NOT 
REMORSEFUL AND ADMITTING GUILT? CREATE ADDITIONAL 
NEWS FODDER? DOES IT MAKE IT MORE LIKELY THAT WE 
WILL HAVE TO REARGUE ON REMAND OR IS REMAND A 
FOREGONE CONCLUSION (IF WE WIN THE APPEAL SO THAT 
WE NEED TO INCLUDE THIS INFO TO COUNTER RESPONDENT 
AND IMPROVE OUR CHANCES OF WINNING APPEAL?] 
It is also submitted that the People's gambit of introducing in 
their brief "additional evidence" outside the record has opened the door 
for Appellant to respond directly to the alleged "misimpressions" about 
the evidence concerning Appellant's Florida offenses and the 
circumstances of the Florida's investigation and prosecution that the 
People apparently now wish to "correct." See, e.g., Conte v. Frelen 
Associates, LLC, 51 A.D.3d 620, 621 (2d Dep't 2008) (finding that a 
court may consider evidence raised in reply papers if the evidence was 
35 
EFTA01085747

submitted in direct response to allegations submitted in the opposition 
papers); Ryan Management Corp. v. Cataffo, 262 A.D.2d 628, 630 (2d 
Dep't 1999) (same). 
Contrary to the People's newly framed and baseless contentions 
that accusations against Appellant went unprosecuted solely because of 
"aggressive negotiations" by counsel,1° in fact the incontrovertible 
evidence demonstrates that Florida prosecutors affirmatively decided 
not to prosecute the vast majority of allegations included in the 
Probable Cause Affidavit based on the lack of merit to such claims. The 
extensive investigation undertaken by the Palm Beach County State 
Attorney's Office revealed the Probable Cause Affidavit to be utterly 
unreliable and riddled with misquotes, omissions of material fact, and 
unprovable 
claims 
made 
by self-interested and 
compromised 
"witnesses." This evidence is briefly summarized herein to refute the 
10 
Of course, there is nothing about Appellant's representation by attentive and 
zealous counsel during the course of the Florida investigation that is inconsistent 
with the fact that the Florida State Attorney's Office determined, after completing a 
thorough investigation, not to prosecute the majority of allegations included in the 
Probable Cause Affidavit based on the lack of merit of those claims. The obvious 
unreliability of the Probable Cause Affidavit, when compared to actual witness 
statements, should dispel the People's baseless insinuation that the Florida 
prosecutor's decision not to pursue the majority of allegations was merely the 
product of aggressive lawyering and negotiation by the defense. 
[CAREFUL 
ABOUT INVITING THE RESPONDENT TO AGAIN MENTION THE FEDERAL 
INVESTIGATION. PROBABLY UNAVOIDABLE, JUST WANT TO MAKE SURE 
WE CONSIDER IT]. 
36 
EFTA01085748

People's last-ditch effort to give credence to the unprosecuted 
allegations in the Probable Cause Affidavit by incorrectly suggesting 
that they were not pursued because of considerations other than an 
utter lack of merit. 
First, and as demonstrated to the District Attorney's Office prior 
to the SORA hearing, the actual transcripts of the interviews on which 
the Board materials were purportedly based reveal that Palm Beach 
Det. Joseph Recarey, the affiant of the Probable Cause Affidavit, 
inaccurately summarized and repeatedly mischaracterized information 
that he swore under oath came from "sworn taped statements," all to 
Appellant's detriment. 
See A.6 (Palm Beach Police Department - 
Probable Cause Affidavit); see also Resp. Br. at 41 (noting the Probable 
Cause Affidavit stated it was based on sworn and tape-recorded witness 
statements). 
This is especially true with respect to allegations 
concerning A.D., the subject of Appellant's conviction triggering his 
duty to register under Florida law," which are referenced and 
n 
Appellant is required to register in Florida solely based on his conviction for 
Procuring a Person Under 18 for Prostitution, Fla. Stat. § 796.03. Appellant's 
conviction for Felony Solicitation for Prostitution, Fla. Stat. § 796.07(2)(0, (4)(c), 
which did not involve allegations of sexual conduct with underage women 
[DOUBLE CHECK], is not a registerable offense under Florida or New York law. 
See Fla. Stat. § 943.0435; N.Y. Correction Law § 168-a(2)(a). 
Furthermore, 
37 
EFTA01085749

highlighted in the Probable Cause Affidavit, A.20 (Palm Beach Police 
Department - Probable Cause Affidavit), the Board's Case Summary, 
A.65 (Board Recommendation), and the People's opposition to this 
appeal (Rasp. Br. at 18-19). 
As he acknowledged by his guilty plea, Appellant's interactions 
with A.D. involved consensual conduct including massages and sexual 
touching in exchange for money, when A.D. was under 18 years old, the 
age of consent in Florida. See A.31 (Information for Procuring Person 
Under 18 for Prostitution, dated June 26, 2008); A.32 (Guilty Plea, 
dated June 30, 2008). Contrary to the inaccurate reference to A.D. as "a 
16-year-old victim" in the Probable Cause Affidavit and the Board's 
Case Summary, the actual transcripts of A.D.'s November 8, 2005 
interview with Det. Recarey make clear that A.D. was indisputably 17 
by the time events "escalated" from massages to "sexual conduct," as 
defined under New York's Penal Law: 
Appellant is only required to register in New York by virtue of Correction Law § 
168-a(2)(d)(ii), which makes an out-of-state offense registerable if that particular 
offense is registerable in the jurisdiction where it was committed. New York law 
does not itself deem the underlying conduct of Appellant's registerable Florida 
conviction to be registerable under New York law. See N.Y. Penal Law § 230.25; 
Correction Law § 168-a(2). In other words, Appellant's conviction, if secured under 
New York law rather than Florida law, would not be registerable at all. 
38 
EFTA01085750

• A.D. Tr. 2:5-15 (A.D. stating that her date of birth is October 10, 
1987, which would have made her two days short of 18 years and 
one month old when she was interviewed by Recarey on November 
8, 2005). 
• A.D. Tr. 3:15-20 (A.D. stating that she first heard about Appellant 
from a friend "about a year ago"). 
• A.D. Tr. 5:14-23 (A.D. stating that after meeting Appellant for the 
first time, she "didn't go again for about two months or so"). 
• A.D. Tr. 6:13-22 (A.D. telling Recarey that she saw Appellant 
approximately 15 times in total, and "things escalated" as time 
went on). 
Additionally, the actual interview transcripts establish beyond dispute 
that A.D. was at least 17 and over New York's age of consent during the 
one time that she engaged in consensual sexual intercourse with 
Appellant. See A.D. Tr. 8:17-9:23 (A.D. stating that she engaged in 
sexual intercourse with Appellant only once, when she was nearly 18 
years old).12
Likewise, Det. Recarey swore in the Probable Cause Affidavit that 
A.D. claimed that Appellant had A.D. and the other female "kiss and 
fondle each other around the breasts and buttocks," whereas A.D. 
expressly denied that the female touched her buttocks or vagina at all, 
12 
Indeed, at the SORA hearing, the Assistant District Attorney herself advised 
the hearing court that A.D. was 17 for most, if not all, of her interactions with 
Appellant, and that she was 17 during the one incident where they engaged in 
sexual intercourse. A.92 (Tr.). 
39 
EFTA01085751

and noted only a "very brief' touch of her breasts that A.D. thought may 
have been "accidental." See A.D. Tr. 10:25-11:25, 12:12-17. Further, 
A.D. was clear that she voluntarily kissed "a female friend" in front of 
Appellant when she was well over 17 and nearing her 18th birthday -- a 
point conspicuously omitted from Det. Recarey's affidavit. See A.D. Tr. 
12:12-13:12 (A.D. stating the last time that she saw Appellant -- which, 
based on testimony cited above, was the time they had sex -- was the 
week before October 10th [A.D.'s 18th birthday], and further stating 
that the one time she was with the female friend was shortly before 
that, around October 2nd or 3rd). Similarly, Det. Recarey omitted from 
the Probable Cause Affidavit the material fact that A.D. unequivocally 
stated that her decision to engage in intercourse with Appellant was 
consensual. See A.D. Tr. 15:12-17 (A.D. stating that all of her conduct 
with Appellant was consensual and that Appellant never used any 
force). 
Likewise, primary source materials (which were provided to the 
District Attorney's Office) demonstrate that Det. Recarey also 
mischaracterized the testimony and allegations concerning A.H., 
another woman who played a significant role in the Board 
40 
EFTA01085752