EFTA00181023

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, 103 
(2d Dep't 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. 
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, 427 (1979)); 
see also Brooks, 303 A.D.2d at 105 (observing "a SORA determination 
34 
EFTA00181103

: 
EFTA00181104

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 v. 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 
EFTA00181105

EFTA00181106

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 
EFTA00181107

EFTA00181108

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).'8
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 
'a 
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 
EFTA00181109

EFTA00181110

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 
R.Al 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 A.4 (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 (rr.). 
38 
EFTA00181111

i 
i 
EFTA00181112

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,'5 see Correction Law §§ 168-
15 
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, 672 (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 RAI 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 
EFTA00181113

EFTA00181114

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 
EFTA00181115

. 
. 
EFTA00181116

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. 
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 
EFTA00181117

, 
EFTA00181118

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 R,AI 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 
It 
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 
EFTA00181119

EFTA00181120

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 
200'7) (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 
EFTA00181121

EFTA00181122