EFTA00230786

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 
EFTA00231566

clear and convincing evidence" is assigned to the District Attorney, 
which represents the State in the proceeding. Correction Law i§ 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 
EFTA00231567

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 
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 AM (Palm Beach Police Department Probable Cause Affidavit of 
ornwo the Florida State Attorney iitly 
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 
EFTA00231568

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.88:14-84:19, 85:11-16, 87:10-12 (Pr.). 
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 
EFTA00231569

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 ).t0
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 
w 
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 
EFTA00231570

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 
EFTA00231571

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 (Tr.). 
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 (Fr.). 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 
EFTA00231572

(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 
rnnntervailing 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 
EFTA00231573

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 
EFTA00231574

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 u 
, 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 
u 
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 
EFTA00231575

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 file" and not citing specific contact with Florida 
authorities). 
Appellant also disputed the validity of many of the 
29 
EFTA00231576

allegations contained therein, both generally and with regard to specific 
allegations. See A. 90:942, 92:13-21, 95:12-18 (Tr.). Notwithstanding 
the obvious existence of disputed relevant issues, the Court did not 
provide the parties with any opportunity to present evidence on 
contested issues, nor did the Court conduct any factual inquiry on its 
own. 
Even though there was no sufficient evidentiary basis to support 
the Board's recommendation, the Court announced that it was relying 
on the Board's case summary and adopting the Board's calculation and 
SORA determination in full. See A.93:21, 96:11-13 (Tr.). Indeed, at one 
point in adopting the Board's scoring, the Court openly acknowledged 
that it was assessing points against Appellant in the face of the People's 
position that the evidence of that factor was "not reliable": 
Number of victims, three or more. He only plead 
[sic] guilty to one, but apparently there were 
more than one and I think the People concede 
that although they say it was not reliable. 
A.94:10-13 (Tr.). This reliance on alleged conduct that the People, as 
the party bearing the burden of proof, e p 
bly-stateel-they-eeuld-not---
prove by clear and convincing evidence, was plainly erroneous as a 
matter of law. See Correction Law §§ 168-k(2), 168-n(2) (stating that 
30 
EFTA00231577

the facts supporting the court's determination shall be supported by 
clear and convincing evidence). 
Accordingly, the Court's Level 3 
determination, based specifically on unproven alleged conduct, cannot 
stand, and the Court's Order should be vacated.12
12 
Even if the Court had a lawful evidentiary basis to adopt the Board's case 
summary in full (which it did not), the case summary does not establish by clear 
and convincing evidence all of the factors for which points were assessed against 
Appellant. For example, the facts alleged in the case summary, even if taken as 
true, do not set forth, by clear and convincing evidence, a continuing course of 
sexual misconduct, which requires a specific finding of either "(i) two or more acts of 
sexual contact, at least one of which is an act of sexual intercourse, oral sexual 
conduct, anal sexual conduct, or aggravated sexual contact, which acts are 
separated in time by at least 24 hours, or (ii) three or more acts of sexual contact 
over a period of at least two weeks" with an underage victim. See Sex Offender 
Registration Act: Risk Assessment Guidelines and Commentary, Commentary 
(2006), at 10 ("Factor 4: Duration of Offense Conduct with Victim"); see also People 
v. Redcross, 54 A.D.3d 1116 (3d Dep't 2008) (holding that continuing course of 
sexual misconduct was not supported by clear and convincing evidence where record 
was silent as to dates that incidents of sexual conduct occurred in relation to each 
other); People u. Donk, 39 A.D.3d 1268, 1269 (4th Dep't 2007) (modifying SORA risk 
assessment where there was not clear and convincing evidence to establish 
continuing course of sexual misconduct under specific definition set forth by SORA); 
People v. Boncic, 15 Misc. 3d 1139(A), 841 N.Y.S.2d 281 (Sup. Ct. N.Y. Cty. 2007) 
(holding that there must be a finding of "actual sexual contact" with the underage 
victim to score for the continuing course of conduct factor under SORA). Here, the 
case summary only speaks of certain allegations generally and provides no detail 
regarding the timing of specific alleged acts of sexual contact, the number of times 
Appellant allegedly engaged in specific acts with individual complainants, or the 
age of the complainants at the time of the relevant acts. Similarly, the case 
ther factors 
for which points were assessed against Appellant, including the "use of violence" 
(e.g. case summary provides only conclusory allegations of "forcible rape" without 
establishing the element of "forcible compulsion"); "sexual contact with victim" (e.g. 
case summary does not specify the age of each complainant at the time of alleged 
relevant sexual contact to determine whether each complainant was underage and 
therefore a "victim"); "number of victims" (same); and "age of victim" (same). 
31 
EFTA00231578

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. 
In addition, the Court's assessment of points against Appellant 
based on allegations that were not and could not be proven by clear and 
convincing evidence constituted a clear violation of Appellant's federal 
due process rights. 
It is settled as a matter of federal constitutional law that those 
persons convicted of a sex offense and required to register under a state 
registration and notification scheme like SORA have a protected liberty 
interest that entitles them to procedural due process. See Doe v. Pataki, 
3 F. Supp. 2d 456, 468 (S.D.N.Y. 1998); see also People v. David W, 95 
N.Y.2d 130, 138 (2000) (holding that the imposition of a Level 3 SORA 
determination implicates liberty interests and triggers due process 
safeguards). 
Courts evaluating that liberty interest under the 
procedural due process analysis articulated by the U.S. Supreme Court 
in Matthews v. Eldridge, 424 U.S. 319 (1976) (balancing the private 
interest affected by state action, the risk of erroneous deprivation of 
that interest, and the interests of the state) have determined that "the 
nature of the [sex offender] classification proceeding is serious enough" 
32 
EFTA00231579

and "carries with it a high risk of error," such that the state must afford 
an individual facing such a risk classification a constitutionally-
mandated minimum level of due process. Doe, 3 F. Supp. 2d at 469, 471 
(citing Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995)). While "the due 
process protections required for a risk level classification proceeding are 
not as extensive as those required in a plenary criminal or civil trial," 
Id. at 470, federal due process is only satisfied when a person being 
assessed under SORA is afforded a "pre-notification hearing 
accompanied by a comprehensive set of procedural safeguards," 
including each of the following: 
(1) 
a judicial determination of his risk level 
classification [by hearing]; 
(2) 
notice of the classification proceeding, 
sufficiently in advance of the hearing to... 
prepare a challenge; 
(3) 
notice of the proceeding must contain a 
statement of [its] purpose and the Board's 
recommended risk level classification; 
(4) 
an opportunity to retain counsel; 
(5) 
pre-hearing discovery; 
(6) 
the state must prove the facts supporting 
each risk factor by clear and convincing 
evidence; and 
(7) 
the right to appeal. 
33 
EFTA00231580

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. 
KB.-44-41ernier-o,-14.9a3c1407.7r 1111-(3d-Girr1997),  eertreleniedr  622 
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 
EFTA00231581

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 
EFTA00231582

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 SOFA 
determination. 
e ou 
proper y 
sesse 
oin s 
tuns 
ppe lant 
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 
EFTA00231583

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).'3
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 
la 
Of rourser the_exact-allegations-for--which4he-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 ('Fr. 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 
EFTA00231584

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 
u. 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 
RAI 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 (Tr.). 
38 
EFTA00231585