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exact age of complainant A.D. at the time of specific conduct) and more 
broadly by noting that the Board's recommendation was based on police 
documentation that was not credible and that contained hearsay 
allegations that the lead sex crimes prosecutor in Florida decided not to 
prosecute. See A.90:9-12, 92:13-21, 95:12-18 (Tr.). Further, Appellant 
advised the Court that there was sworn testimony from many of the 
women referenced in the police paperwork and the Board's case 
summary which expressly disclaimed allegations attributed to them. 
See A.95:19-23 (Tr.). 
Notwithstanding the clear record that facts underlying the 
Board's recommendation were disputed, the Court announced that it 
was relying on the Board's case summary and adopting the Board's 
calculation and recommendation in full. See A.93:21, 94:6-95:9 (Tr.). 
The Court did not conduct any factual hearing as to specific claims for 
which points were assessed. See A.82 (Tr. generally). The Court scored 
Appellant for factors such as number of victims, use of violence / forcible 
compulsion, duration of offense, and sexual intercourse, based on 
allegations that the People -- as the party bearing the burden of proof --
asserted on the record could not be supported by clear and convincing 
14 
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. 
: 
. 
. 
EFTA00181064

evidence. See A.94:7-95:9 (Tr.). Despite the legal and factual position of 
the People that the Board's recommendation could not be relied on and 
that allegations concerning all complainants but the one in the 
Information could not be proven, the Court ruled that it was relying on 
the Board's recommendation in full and adjudicating Appellant a Level 
3 sex offender with no additional designation. See A.93:21, 93:25-94:3 
(Ira 
On the record, the Court recited the scoring of the Board in 
abbreviated form, without identifying any particular facts or allegations 
to support each factor. See A.94:6-95:9 (Tr.). In its written Order, the 
Court indicated a final risk level determination of Level 3 by merely 
circling a pre-printed form. See A.4 (Order Appealed From, dated Jan. 
18, 2011). 
The Court failed to articulate any findings of fact or 
conclusions of law, as required under SORA. See A.4 (Order Appealed 
From, dated Jan. 18, 2011); A.82 (Tr. generally). 
Appellant was served with a copy of the Court's Order on or about 
January 19, 2011. See A.78 (Letter from Supreme Court, dated Jan. 19, 
2011). Appellant served a Notice of Entry of the Court's Order on 
February 9, 2011, and on the same day filed a Notice of Appeal to 
15 
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I 
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invoke this Court's jurisdiction. See A.4 (Order of Appealed From, 
dated Jan. 18, 2011, with Notice of Entry); A.3 (Appellant's Notice of 
Appeal, dated Feb. 9, 2011). Appellant now respectfully files this 
appeal as of right, pursuant to Correction Law §§ 168-k(2), 168-n(2) and 
CPLR 5513, 5515, to vacate the legally erroneous and factually 
unsupportable Order and re-calculate Appellant's SORA risk level 
based solely on those factors that may properly be considered under 
SORA and that have been proven by clear and convincing evidence.? 
ARGUMENT 
The Court's reliance on allegations that were flatly rejected by the 
Florida prosecutors who investigated them and which, by the People's 
own admission, could not be proven by clear and convincing evidence, 
constitutes clear legal error and a violation of Appellant's due process 
rights, warranting vacatur of the Court's Order. Specifically, the Court 
calculated a risk assessment score based on untrustworthy double and 
7 
Appellant asks this Court to render its own findings of fact and conclusions of 
law -- assigning a risk Level 1 -- based on an appropriate consideration of the 
undisputed facts in the Record proven by clear and convincing evidence concerning 
Appellant's conviction. To the extent this Court is unable to issue findings of fact 
and conclusions of law based on the present Record, Appellant seeks remand to the 
lower court before a different Justice for a recalculation in which the parties are 
afforded an opportunity to present evidence regarding contested relevant issues, if 
necessary. See Section II(B), infra. 
16 
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EFTA00181068

triple hearsay allegations cited in the Board's recommendation that 
were squarely rejected as a basis for state prosecution in Florida, were 
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. 
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. 
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 
a 
Appellant's Florida conviction for Procuring a Person Under 18 for 
Prostitution is a qualifying "sex 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. 
17 
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EFTA00181070

its 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 (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, 891-92 (4th Dep't 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 Cty. 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 make a de novo determination."). Yet the Court's authority 
18 
EFTA00181071

. 
EFTA00181072

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 (3d Dep't 
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 (2d Dep't 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 (1st Dep't 1989). Under SORA, the 
"burden of proving the facts supporting the determinations sought by 
19 
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EFTA00181074

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 of 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. 
A. 
The People's Investigation Revealed That The Board's 
Recommendation Could Not Be Proven By Clear and 
Convincing Evidence. 
The People began the SORA hearing by advising the Court that 
their own investigation and communications with the Florida State 
20 
EFTA00181075

I 
EFTA00181076

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.83:14-84:19 ('Pr.). 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 
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.85:19-86:1 (Tr.). 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 
a 
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 
Sarah Kellen. See A.6 (Palm Beach Police Department - Probable Cause Affidavit of 
J. Recarey, dated May 1, 2006). Furthermore, the Florida State Attorney expressly 
rejected the claims asserted in the police affidavit (which sought to charge Kellen 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. § 794.06(1), and Lewd and Lascivious Molestation, Fla. Stat. 
§ 800.04(5). 
21 
EFTA00181077

. 
EFTA00181078

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.84:2-6 (Tr.). 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 A.83:14-84:19, 85:11-16, 87:10-12 (Tr.). 
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 
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 
22 
EFTA00181079

. 
EFTA00181080

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. 
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 
to 
Of note, at one point during the SORA proceeding, the Court seemingly 
dismissed out of hand the SORA guidelines concerning uncharged allegations. See 
A.84:7-13 (Tr.) (Court expressing skepticism toward the Board's guidelines that "if 
somebody is not indicted it is strong evidence that it did not occur."). 
23 
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. 
EFTA00181082