EFTA00231917

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 
convictedpertained to consensual, commercial, non-violent interaction with one 
woman, M., 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); A.91:20-92:7 (Tr.). 
10 
EFTA00232677

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 (Tr.). 
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 
EFTA00232678

unprosecuted allegations in the probable cause affidavit cited by the 
Board. See A.83:14-84:19 (Pr.). 
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 
EFTA00232679

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 
A149:22-90:21. 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 
EFTA00232680

exact age of complainant 
. 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 gr.). 
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 
EFTA00232681

evidence. See A.94:7-95:9 (Fr.). 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 
(Tr.). 
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 
.Tannery 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 
EFTA00232682

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 
abaiguing a .:Mk Level 1 
ideration of
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 11(B), infra. 
16 
EFTA00232683

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 COURTS 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 t e 
ar genera 
8 
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 
EFTA00232684

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 
EFTA00232685

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 
EFTA00232686

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 
EFTA00232687

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 (Tr.). 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 
9 
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 
See A.6 (Palm Beach Police Department - Probable Cause Affidavit of 
Attorney 
r sly 
rejected the claims asserted in the police affidavit (which sought to charge 
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. § 794.05(1), and Lewd and Lascivious Molestation, Fla. Stat. 
§ 800.04(5). 
21 
EFTA00232688

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 (Fr.). 
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 
EFTA00232689

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 
80 
Of note, at one point during the SORA proceeding, the Court seemingly 
dismissed out of hand the SORA guidelines concerning uncharged allegations. See 
k84:7.13 (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 
EFTA00232690

bargain), they should not be scored on the RAI or factored into a risk 
determination in the absence of other evidence to corroborate their 
validity. 
See Sex Offender Registration Act: 
Risk Assessment 
Guidelines and Commentary, Commentary (2006), at 5, ¶ 7; see also 
People v. Smith, 66 A.D.3d 981, 983 (2d Dep't 2009) (holding that 
defendant's alleged use of knife was not proven by clear and convincing 
evidence and could not be scored against defendant in SORA hearing 
where testimony about use of knife was presented to grand jury but 
grand jury did not indict on weapons charge); People v. Coffey, 45 
A.D.3d 658 (2d Dep't 2007) (holding that it was improper for court to 
consider allegations concerning a charge that was dismissed in 
evaluating defendant's SORA risk level); People v. Arotin, 19 A.D:3d 845 
(3d Dep't 2005) (holding that defendant could not be scored under 
SORA for deviate sexual intercourse where defendant was not indicted 
for such an offense and the only evidence of such conduct came from 
triple hearsay in a police report used by the Board). 
Significantly, here, the People did not merely apply the SORA 
guideline suggesting that uncharged allegations may not be reliable 
evidence of an offense. Instead, the People had actual information from 
24 
EFTA00232691

the Florida State Attorney's Office that the complainants referenced by 
the Board in connection with uncharged claims were not cooperative 
with authorities, prompting the Florida State Attorney's Office to decide 
not to pursue charges in connection with those unsupported allegations. 
See A.84:14-19, 85:19-86:1, 86:10-12 (Fr.). 
Moreover, the People 
acknowledged that they had no corroborating materials -- such as 
interview notes, sworn statements, or affidavits -- which would permit 
them to meet their burden of proving disputed allegations by clear and 
convincing evidence. See A.84:14-19, 85:19-86:1, 86:10-12 (Tr.). As a 
result, the People advanced the position that the law compelled they 
take -- advising the Court that the Board's recommendation was wrong 
and that a Level 3 determination was not supported by the provable 
evidence. 
B. 
The 
Court 
Improperly 
Relied 
on 
the 
Board's 
Recommendation Where the Facts Cited Therein Were 
Disputed and No Further Evidence Was Presented. 
Notwithstanding the reasoned, evidence-based disavowal by the 
People of the Board's recommendation (based on the People's 
communications with the Florida prosecutor), the SORA Court relied 
wholesale upon the Board's recommendation. See A.93:21, 94:6-95:9 
25 
EFTA00232692

(Tr.). The Court improperly overlooked the burden of proof statutorily 
imposed on the People and its own duty to evaluate the evidence, and 
adopted the Board's recommendation, seemingly as a per se matter. See 
A.85:11-18 (Tr.) (the Court opining, without factual basis, that the 
Board "obviously took [their own guidelines] into consideration" when 
assessing points for uncharged conduct). Indeed, although the Court 
cited no specific information to suggest that the Board itself 
communicated with Florida prosecutors in preparing the case summary, 
the Court attempted to justify its blind reliance on the Board's 
recommendation by stating, "I feel the board looked into all of this, 
made their recommendation, found him to have 130 points and I see no 
reason to disturb that." A.96:11-13 (Tr.). 
While the Court of Appeals has recognized that a Board-generated 
case summary may constitute "reliable hearsay" upon which the Court 
may base a SORA risk calculation, the law is equally clear that a 
Board's case summary is not per se reliable, particularly in the face of 
rnuntervailing evidence. See People v. Mingo, 12 N.Y.3d 563, 572-73, 
(2009) ("Of course, information found in a case summary ... need not 
always be credited -- it may be rejected when it is unduly speculative or 
26 
EFTA00232693

its accuracy is undermined by other more compelling evidence"); see also 
People v. Mabee, 69 A.D.3d 820 (2d Dep't 2010) (finding Board's case 
summary did not constitute clear and convincing evidence to support 
scoring under SORA where it provided only very limited information 
pertaining to the particular factor). Indeed, information contained in a 
Board's case summary does not by itself clear the hurdle of "clear and 
convincing evidence" -- a higher standard than mere "reliable evidence" 
-- where the offender disputes the relevant contents of that evidence. 
See People v. Judson, 50 A.D.3d 1242 (3d Dep't 2008) (holding that case 
summary alone could not satisfy state's burden of proving factors by 
clear and convincing evidence to support level 3 determination where 
defendant contested certain factual allegations related to those factors); 
cf. People v. Wasley, 73 A.D.3d 1400, 1401 (3d Dep't 2010) (holding 
"evidence included in the case summary may provide clear and 
convincing evidence in determining a defendant's risk assessment level 
where defendant did not dispute its contents insofar as relevant?) 
(emphasis added); People v. Curthoys, 77 A.D.3d  1215, 1216 (3d Dep't 
2010) (noting that the "uncontested contents of a case summary can 
satisfy the People's burden of demonstrating . . . clear and convincing 
27 
EFTA00232694

evidence") (emphasis added). Thus, it certainly follows that a Board's 
case summary cannot, as a matter of law, constitute the sole requisite 
"clear and convincing evidence" required to support a SORA 
determination where the People, as the party representing the Board, 
also expressly disclaim the reliability of that case summary. 
Here, the Board's case summary was based almost entirely on 
double and triple hearsay allegations described in an affidavit 
submitted by police to the Florida prosecutor. 
See A.65 (Board 
Recommendation); A.6 (Palm Beach Police Department - Probable 
Cause Affidavit of J. Recarey, dated May 1, 2006). The allegations, 
even when aggregated, were not deemed by the Florida prosecutor who 
reviewed them to constitute sufficient "probable cause" to warrant the 
return of a complaint, information, or indictment as to any of the 
charges that the affidavit sought." 
And, of course, because the 
requested charges were never brought, no court ever reviewed or 
authorized the affidavit's allegations to make a judicial finding of 
"probable cause" as to any such allegations. Even had the Florida 
ii 
Although the affidavit considered by the Board was submitted with respect to 
a defendant other than Appellant, it appears that the allegations in the affidavit 
were intended to establish probable cause to charge Appellant with Unlawful 
Sexual Activity with a Minor, Fla. Stat. § 794.05(1), and Lewd and Lascivious 
Molestation, Fla. Stat. § 800.04(5) -- charges that were never brought. 
28 
EFTA00232695

prosecutor decided to arrest and charge Appellant based on allegations 
contained in the affidavit, the mere fact of an arrest or charge is not 
sufficiently trustworthy by itself to support the assessment of points 
against Appellant under SORA. See Sex Offender Registration Act: 
Risk Assessment Guidelines and Commentary, Commentary (2006), at 
5, ¶ 7 ("the fact that an offender was arrested or indicted for an offense 
is not, by itself, evidence that the offense occurred"). Such allegations 
cannot be deemed reliable -- never mind satisfying the elevated 
standard of clear and convincing evidence -- where, as here, the People 
had specific information from the Florida prosecutor that Florida made 
the decision not to pursue such charges based precisely on the 
insufficiency of the evidence. See A.83:23-84:19, 85:19-86:1 (Tr.). 
In short, the People directly disputed the reliability of the Board's 
case summary and recommendation, based on information that was not 
before the Board following communications with the Florida prosecutor. 
See 
A.83:14-84:19, 
85:11-87:12 
(Tr.); 
see 
also 
A.65 
(Board 
Recommendation) (noting that Board's assessment was based on review 
of "inmate's Me" and not citing specific contact with Florida 
authorities). 
Appellant also disputed the validity of many of the 
29 
EFTA00232696