EFTA00602338

Mingo, 12 N.Y.3d 563, 573 (2009), and those materials "often [are] replete with 
hearsay culled from a variety of secondary sources." People v. Vasquez 20 Misc.3d 37 
(App. Term 1st Dept. 2008). Hearsay is "reliable for SORA purposes" if, "based on 
the circumstances surrounding the development of the proof, a reasonable person 
would deem it trustworthy." People v. Mingo, 12 N.Y.3d at 575. 
Victim statements, in particular, are among the class of materials treated as 
presumptively reliable for purposes of a SORA hearing, and that is true even when 
the statement was not made under oath. People v. Mingo, 12 N.Y.3d at 576. The 
SORA court should disregard a victim statement only when that statement is 
"equivocal, inconsistent with other evidence, or seems dubious in light of other 
information in the record." 12 N.Y.3d at 577. 
Equally clearly, the mere fact that conduct has not been the subject of formal 
charges does not bar its consideration for SORA purposes. The SORA Guidelines 
explicitly provide that, when determining an offender's risk level, "the Board is not 
limited to the crime of conviction." Guidelines at 5. The Guidelines state that "the 
fact that an offender was st indicted for an offense may be strong evidence that the 
offense did not occur." Guidelines at 5 (emphasis in original). However, by phrasing 
that principle in the permissive way—that the absence of indictment "=" be strong 
evidence (emphasis supplied)—the Legislature conveyed nothing more than the 
simple fact that there were circumstances under which the absence of formal charges 
would, in fact, cast doubt on the offender's commission of the conduct at issue. 
-37-
EFTA00602378

Indeed, this Court recently recognized as much in People v. Johnson 77 
A.D.3d 548 (1st Dept. 2010). In Johnson, the defendant had pleaded guilty to the 
sole count of a superior court information charging statutory rape, and this Court 
upheld a SORA assessment against him for having used forcible compulsion in the 
commission of that crime. The SORA court had based the forcible-compulsion 
assessment on the victim's hearsay statement, as contained in the felony complaint, 
describing the manner in which the crime had been committed. In doing so, Johnson 
implicitly acknowledged the likely scenario that the defendant had been permitted "to 
plead to a crime less serious than the one that could be proven." People v. Johnson,
77 A.D.3d at 550 (McGuire, J. concurring). 
Finally, it is clear that the ordinary rules of preservation apply to an appeal from 
a SORA. determination. agg People v. Windham 10 N.Y.3d at 802; People v. Roland,
292 A.D.2d 271 (1st Dept. 2002). 
Here, for the reasons set out fully below, the SORA court properly recognized 
that the Board's assessment of points for repeated and serious sex offenses was based 
on information that was entirely reliable. The victim-accounts themselves carried 
strong indicia of reliability, and there was an abundance of reliable information 
corroborating the events described in the victim-accounts. Furthermore, the manner 
in which that information was conveyed had its own inherent assurances of reliability. 
Based upon the totality of extensive and compelling information before it, the SORA 
court had more than ample basis to conclude that the victim-accounts were reliable, 
-38-
EFTA00602379

and that neither the formal charges that had brought against defendant nor his guilty 
plea accurately conveyed the nature and extent of his criminal conduct in this case. 
B. 
Defendant claims that the risk-assessment determination was not supported by 
the requisite "clear and convincing evidence." As he did below, defendant attempts 
to limit the Florida conduct considered for risk-assessment purposes to only those 
actions that can be said to have given rise to the two formal charges brought against 
him. Defendant claims that all of the detailed information about his additional and 
sordid sexual misconduct was unsuitable for consideration for SORA purposes. And, 
in advancing that argument, defendant points largely to statements to that effect made 
by the People at the SORA hearing. For the reasons set out more fully below, this 
Court should uphold the SORA. court's decision to accept the well-supported 
recommendations made by the SORA Board, notwithstanding arguments by both 
defendant and the People to the contrary.3
3 On appeal, defendant urges that the supposed absence of the requisite "clear and 
convincing evidence" constituted a violation of his federal constitutional right to due process 
(Brief for Defendant at 32-33). That notion was never mentioned below, so it has not been 
preserved for appellate review. People v. Kello, 96 N.Y.2d 740, 744 (2001)(constitutional 
complaints must be raised with specificity). In any event, the short answer is that, as set out 
herein, the requisite supporting information was, in fact, before the SORA court, and 
therefore no violation of defendant's rights, constitutional or otherwise, occurred. 
-39-
EFTA00602380

As noted, when determining whether a risk factor has been supported by "dear 
and convincing evidence," the Board and a SORA court may consider information 
from any source that is "reliable." So too, as a practical matter, the information at a 
SORA hearing very often is in the form of reliable hearsay. Here, the SORA court 
correctly recognized that the information submitted by the Board, including the 
victim-statements, was entirely reliable and therefore appropriately considered for the 
purpose of making a SORA risk-level determination. 
To begin, the evidence of defendant's extended course of sex crimes was 
before the court not only in the Board's Case Summary of those activities—which, as 
noted, was presumptively admissible at the hearing—but also in the underlying 22-
page probable-cause affidavit itself. The court saw that the affidavit systematically 
identified all the sources of the information it recounted—either by full name or, in 
the case of a minor, by initials and date of birth. The court also saw that the affidavit 
had been signed and sworn to by the Palm Beach detective who had prepared it. acs
People v. Mingo, 12 N.Y.3d 563, 573 (2009)(fact that statement made under oath is "a 
significant, though not indispensable, indication of reliability'). This combination of 
circumstances gave the document an unmistakable cast of reliability.4
4 Of course, defendant's suggestions notwithstanding (Brief for Defendant at 21, 28), 
it was of no meaningful significance for SORA assessment purposes that the SORA 
materials provided to the court ha 
ned to contain a copy of the probable-cause affidavit 
listing defendant's accomplice, 
as the subject, rather than the one that listed 
defendant. As defendant himself knew, and therefore did not make a complaint along this 
(Continued...) 
-40-
EFTA00602381

More particularly, though, the court knew that the affidavit's contents, and 
especially the victim-statements themselves, carried nothing short of hallmark indicia 
of reliability. Notably, the affidavit stated that all the victim-statements, and many of 
the witness-statements as well, had been sworn and tape-recorded. The affidavit also 
stated that these sworn statements by the victims had been preserved in the form of 
tape-recordings (A®. Significantly, too, virtually all of those accounts were highly 
detailed—itself an indicator of reliability. 
Even more telling was the fact that the victims' detailed accounts of the sexual 
encounters were virtually identical. As noted, all of the girls reported having been 
ushered through the kitchen entrance of defendant's house and then escorted to an 
upstairs bedroom containing a massage table, and then defendant, wearing only a 
towel, entered, made a selection from among an array of massage oils, and lay nude 
on the table while requesting that the girl undress as well. While some "massages" 
(...Continued) 
line at the hearing, it was simply the content of the affidavit's sworn allegations themselves 
that was at issue at the hearing. And, for all the reasons set out in this brief, the affidavit's 
detailed, sworn allegations established both defendant's own extensive sexual misconduct 
and 
criminal conduct as an accomplice of defendant in that process. 
-41-
EFTA00602382

In fact, many of the victim-accounts included references to the same distinctive 
details about the "massage" locale—a hot-pink-and-green couch in the bedroom, for 
example, as well as an adjacent bathroom containing not just a shower but also a 
sauna/steam room, and a stairway-wall lined with photographs of naked young girls. 
Put simply, the similarity of all the massage accounts provided a valuable assurance of 
reliability to all those various accounts. 
While the victim-accounts, in themselves, thereby carried strong indicia of 
reliability, the court saw that those accounts also were heavily corroborated by a 
wealth of independent and inherently reliable information. Again, this corroborative 
information as well was set out in detail in the sworn probable-cause affidavit. 
For example, 
herself made a sworn, tape-recorded statement to police 
acknowledging her own particular role in defendant's enterprise and confirming the 
core of what the victims had said. Just as many of girls described having been 
recruited by 
for the equivalent of a finder's fee, 
confirmed that she 
had, in fact, done so. Echoing the routine portrayed by the victims, 
described 
how she herself had begun by providing a massage for defendant at age 17—entering 
the house through the kitchen, and being escorted by 
to an upstairs bedroom, 
-42-
EFTA00602383

after he had selected oils while lying naked on the massage table. But, as 
explained, she soon "graduated" to bringing other girls to defendant for that purpose, 
in exchange for which she was given money. 
In this regard, as noted, 14-year-old S.G. had given one of the detailed victim-
accounts, and 
also acknowledged having brought S.G. to defendant when 
S.G. was 14 years of age, and having received $200 for that service. S.G. received 
$300 for the massage, 
confirmed. All of those details mirrored the account 
that S.G. herself had given. 
also confirmed another important fact common 
to the victim-accounts—namely, the vital importance of the young age of the girls 
supplied to defendant. All girls whom 
had brought to defendant were 
between the ages of 14 and 16, 
stated. 
related defendant's dear 
words to her on the subject—"The younger, the better," he had emphasized. 
remembered well defendant's rejection as "too old" a 23-year-old whom 
had 
once brought to him. 
Significantly, when evaluating the trustworthiness of 
account, the 
court knew that 
remarks constituted admissions on her part, and therefore 
were imbued with a high degree of inherent reliability. aes generally People v. 
Brensic, 70 N.Y.2d 9, 14 (1987). Notably, too, there was no doubt that 
was 
aware of the incriminatory nature of the remarks, since the police informed her of 
that circumstance explicitly. When a sergeant pointed out that 
had implicated 
-43-
EFTA00602384

herself in criminal activity—by admitting that she had been paid for delivering minors 
for the purpose of sexual activity
 bragged that she was "like Heidi Fleiss." 
Another compelling piece of corroborative evidence before the court came in 
the form of a controlled telephone call made by S.G. to 
Detectives heard 
S.G. ask what exactly she had to "do" in order to "make more money," and, without 
missing a beat, 
replied by explaining, "The more you do, the more you get 
paid." In that same connection, there was the voicemail message that 
had 
subsequently left for S.G., informing S.G. of her appointment at defendant's house at 
11:00 a.m. on April 5, 2005; relatedly, the court also saw that, as a result of a trash 
pull, detectives had the remnants of a telephone message left for defendant listing the 
names of both S.G. and 
along with that very same date and time. 
For yet additional confirmation, the court also had read the accounts of two 
people who had worked as housemen for defendant—for a combined period of about 
eleven and a half years. Both housemen had seen a steady flow of different girls come 
to defendant's house at regular intervals—either two or three times a day—on every 
day that defendant was in residence at his Palm Beach home. And, both housemen 
noticed that these supposed masseuses seemed to be very young-16 or 17 years of 
age, at most. The men further reported that, after so-called massage sessions, they 
routinely found various "sex toys"—such as a vibrator and a long rubber penis—
strewn around the bedroom and adjacent bathroom, and it became the responsibility 
of the housemen to wash the sex toys and put them away. 
EFTA00602385

Next, the affidavit pointed to various subpoenaed records that yielded 
additional corroboration of the victim-accounts. For example, cell phone records 
revealed calls made by 
to certain victims at times consistent with ones 
reported by the victims. Indeed, cell phone records revealed calls made by 
both to 
and various victims, and, with aviation-record data of arrival and 
departure times for defendant's private plane at Palm Beach International Airport, it 
was clear that all of those calls had been made during periods either immediately 
before, or during, defendant's stays in Palm Beach. 
That information, thus, 
confirmed the accounts—by 
and the victims alike—that once defendant 
informed 
of his impending stays in Palm Beach, 
reached out both to 
and to certain girls directly, in order to ensure that, whenever defendant was 
in town, the requisite number of teen sex-providers showed up steadily, and in timely 
fashion, at his door. 
Finally, the record also established that among the list of yet additional 
powerful corroboration were important observations made by the detectives 
themselves inside defendant's house during the execution of the search warrant. The 
affidavit recounted that the detectives had found the distinctive pink-and-green 
bedroom sofa, as well as the staircase-wall lined with photographs of naked young 
girls—some of whom, in fact, the detectives recognized from having interviewed 
them during the investigation. In a desk in defendant's bedroom, the detectives had 
found the high school transcript of A.H., the teenaged victim who had dubbed herself 
-45-
EFTA00602386

defendant's "number one girl"—having reportedly gone to his home regularly for 
sexual activity over the course of two full years, since the age of sixteen. 
The detectives also recovered carbon copies of telephone messages left for 
defendant saying, "I have girls for him," and, "I have 2 girls for him"; 
, who 
had been named by virtually all the interviewed girls as defendant's assistant in the 
massage-mill operation, was listed on each of these particular messages as the person 
who had recorded it. 
Yet other messages listed names and numbers that the 
detectives recognized from the investigation. 
Put simply, the information in the probable-cause affidavit certainly constituted 
the kind of "reliable" information upon which SORA findings are based. Given the 
detailed, sworn accounts of the victims, and the extraordinary amount of compelling 
evidence corroborating that dovetailing proof, the SORA court had every reason to 
rely on the victim-accounts when determining defendant's risk-level designation. 
Again, the sole purpose of the SORA registration and reporting requirements is the 
protection of the public from unlawful sexual conduct by an offender, and points may 
properly be assessed against an offender for any factor of which there is "clear and 
convincing evidence." With those governing principles in mind, the SORA court had 
ample basis to conclude that, as a general proposition, the victim-accounts set out in 
the probable cause affidavit provided reliable information about the level of risk that 
defendant posed. 
-46-
EFTA00602387

C. 
Defendant's assertions notwithstanding, the People's remarks at the SORA 
hearing did nothing to diminish the propriety of the level-three risk designation. 
Again, the Board itself had recommended precisely that risk level. And, the court saw 
not only the Case Summary and resulting Risk Assessment Instrument calculations, 
but also the huge array of reliable information that had formed the basis of each 
individual point assessment. While the People expressed reservations about the 
suitability of certain portions of information for SORA purposes, the court correctly 
recognized that the People's arguments in that regard were based largely upon a 
simple misunderstanding of the governing legal standard, and otherwise on a 
combination of certain unreliable hearsay information and unfounded speculation 
which itself had roots in that same legal misunderstanding. Therefore, for the reasons 
set forth more particularly below, the SORA court acted well within its discretion 
when it chose to reject the arguments put forward by the People, and to adopt the 
well-supported recommendation of the SORA Board instead. 
At the SORA hearing, the prosecutor informed the court, "[W]c don't believe 
that we can rely on the entire probable cause affidavit" (H: 2). 
When the court 
responded, "I don't know why you cannot rely on it," the prosecutor stated her 
reasons—namely, that, unlike in a "plea bargain" situation, the Florida prosecutor 
here "went forward" only on "one case," there was "an indictment for one victim," 
and "that is what the defendant pled to" (H2). The prosecutor stated her belief that, 
-47-
EFTA00602388

"under the Board guidelines," the lack of indictment for an offense "is strong 
evidence that the offense did not occur" (H2-3)(emphasis supplied). 
Clearly, the prosecutor had simply misread the Guideline provision about the 
significance of the lack of indictment. As noted, the Guideline language on the 
subject is couched not in the absolute terms that the prosecutor used but rather in 
permissive ones. The rule to which the prosecutor referred provides that the lack of 
indictment for an offense "may be strong evidence that the offense did not occur." 
Guidelines at 5 (emphasis supplied). The prosecutor, in contrast, characterized the 
text as reading "is strong evidence." Certainly, the actual statutory phrasing "may be 
strong evidence" contemplates that there will, in fact, be circumstances where the lack 
of indictment does 
carry any such negative connotation about the occurrence of 
the offense. 
One obvious circumstance where the absence of indictment lacks probative 
value on the question of guilt is that of a plea bargain. The prosecutor believed that 
this case was unlike a situation where a plea bargain had taken place, because 
additional charges had not been indicted here before the plea. 
However, the 
experienced trial judge in this case knew that in some situations—and particularly 
ones where zealous private counsel are involved—negotiated plea compromises may 
sometimes be reached well before an indictment has been handed down, and 
sometimes may even stave off prosecution entirely. 
-48-
EFTA00602389

In Johnson, as noted, this Court made the point about plea bargains very 
clearly. The Court upheld a SORA assessment on the forcible-compulsion factor 
despite the fact that the defendant had pleaded guilty to a single-count accusatory 
instrument charging him with statutory rape. The force assessment had been made 
on the basis of the victim's hearsay statement, as contained in the felony complaint, 
that force had been used in the commission of the crime. Clearly, in Johnson, this 
Court upheld the point-assessment on the theory that the defendant had likely been 
given the benefit of a plea bargain, and thus the conviction did not accurately 
represent the extent of his conduct in the case. The SORA court here, in turn, knew 
that the same scenario was likely in this case. Indeed, alluding to this commonsense 
idea, the court even asked the prosecutor straightforwardly, "Do you find that if 
somebody is not indicted it is strong evidence that it did not occur?" (H3). 
Apart from her stated concern stemming from the mistake about the statute, 
the prosecutor also expressed a reluctance based upon what she believed had been a 
lack of "cooperation" on the part of the victims. As the below-quoted exchange 
shows, though, when the prosecutor first mentioned that additional reservation, the 
court was still grappling with the prosecutor's first stated concern. 
From the court's perspective, since nothing was suspect about the victim-
accounts, and there was so much other information as well—what the court called 
"everything here"—the court pressed the prosecutor on her position. The prosecutor 
went on to elaborate about what she believed to be a lack of "cooperation" on the 
-49-
EFTA00602390

part of the victims, and the court questioned the prosecutor pointedly, establishing 
that the prosecutor simply lacked a reliable basis to conclude that there had been any 
such lack of cooperation. The prosecutor admitted that, since the Florida prosecutor 
who had handled the case had since "left the office," she had merely spoken to the 
Florida prosecutor who "took over the case" (1-15). 
The court characterized the 
prosecutor's information as "hearsay," and repeatedly urged the prosecutor to contact 
the Florida prosecutor who had actually handled the case (H5). Remarking that it had 
never seen the prosecutor's office recommend what it termed a "downward 
argument" such as this, the court expressed its belief that the People had "done more 
in other cases looking into it," and had not done "much of an investigation here" 
(H5-6). 
Indeed, after its exchange with the prosecutor, the court correctly concluded 
that there was no reliable information indicating that the victims had failed to 
cooperate with the authorities. Again, the prosecutor had acknowledged that she had 
never even spoken to anyone with first-hand knowledge of the Florida case: she had 
not spoken to the Florida prosecutor who had handled the case, and there is no 
indication that she had spoken to any of the detectives who had dealt with the victims 
so extensively during the Palm Beach Police Department's year-long investigation of 
these events. Instead, as the court pointed out, the prosecutor had relied on mere 
"hearsay" for the notion that the victims had not cooperated—unreliable hearsay, the 
court clearly meant, since it emphasized that the sole source of the prosecutor's 
-50-
EFTA00602391

information was one Florida prosecutor who had "taken over the case" after it had 
been resolved, and there was no logical reason to conclude that this take-over person 
was in a position to contribute anything whatsoever of value. Simply put, the court 
saw that, in contrast to the vast array of concrete reasons to credit the victim-
accounts, the prosecutor's hesitation was based on mere supposition and unfounded 
speculation. 
Lastly, it is worth pointing out that, as the court also well knew from the 
record, even a reluctance on the victims' part to cooperate with authorities would not 
necessarily have cast doubt on the truth of their accounts. Victims of sex crimes, and 
particularly child victims, commonly display an understandable reluctance to relive the 
traumatic ordeal of the crime, and sometimes they choose not to pursue the matter 
with the authorities. Indeed, the desire to protect a child sex-crimes victim from the 
ordeal of a public trial can lead a prosecutor to offer a favorable plea bargain even 
when the defendant's guilt is entirely clear. 
Thus, whether or not these particular 
child sex-crime victims would have cooperated fully in an extended prosecution, their 
detailed, mutually-corroborative accounts—corroborated yet additionally by an 
extensive array of independent, reliable evidence—were properly considered for 
SORA purposes. 
In short, while defendant has cast this as a situation where the People 
undertook their own independent "investigation" of the victim-accounts and 
determined that the accounts were unreliable, the record resoundingly defeats that 
-51-
EFTA00602392

proposition. 
In reality, the prosecutor thought that the victim-accounts were 
automatically excluded from consideration by a legal rule, but it turns out that the 
legal interpretation was simply mistaken. The prosecutor also seems to have made 
some unwarranted factual leaps based upon information from an unreliable source. 
The SORA court understood that the combination of information provided by the 
Board provided more than the requisite "dear and convincing" reason to believe that 
defendant had preyed on the numerous victims in this case and thus posed a 
significant risk to the community. The court acted correctly, and certainly well within 
its discretion, when it concluded that the People's stated concerns did not cast any 
meaningful doubt on the propriety of the Board's recommendation. 
D. 
Nor is defendant persuasive when he contends that the court harbored a 
"personal distaste" for him, and allowed these "personal feelings" about him to 
influence the SORA determination (Brief for Defendant at 38-44). 
First of all, as 
noted, SORA appellate claims, like any others, must be preserved, and this one is not. 
At the hearing, defendant made no complaint whatsoever about a supposed lack of 
objectivity. And, defendant failed to advance a protest on this score because there 
simply was no meaningful complaint to be made on the subject Indeed, defendant's 
current baseless attack is simply a necessary part of his attempt to forum-shop, to 
enhance his chance of success if he succeeds in obtaining a remand. ate infra at 55-
-52-
EFTA00602393

62. In the end, however, there is no merit whatsoever to defendant's attack on the 
SORA court, and his belated attempts in this regard must fail. 
Significantly, defendant points to nothing that suggests there had been any 
personal contact or dealings between the court and him. 
In fact, since defendant 
chose not to attend the SORA hearing, the court may not have even met him. 
Rather, to support the current claim of supposed bias against him personally, 
defendant points merely to remarks made by the court during two isolated sections of 
the SORA hearing. Defendant's belated claims notwithstanding, though, there was 
nothing improper in those remarks, or any others for that matter. 
For example, as noted, in one set of remarks that defendant now challenges 
(Brief for Defendant at 41-42), the court referred to a SORA determination that it had 
made in a different case—one involving a marine—to underscore its confusion about 
what seemed to be unexplained leniency on the part of the People here (H3-4). 
Since, in the court's view, the evidence of defendant's guilt was straightforward and 
compelling, and the crimes involved were numerous and serious, the court struggled 
with the fact that, in this particular case, the prosecutor was urging rejection of the 
Board's level-three finding. In a case where a marine had engaged in a consensual 
sexual relationship with a 17-year-old who had approached him in a bar, the court 
pointed out, the People vehemently insisted on a level-three finding. The court noted 
the sharp contrast between the People's position in that case and their position here. 
-53-
EFTA00602394

As the above-discussed record shows, any "personal" disdain displayed by the 
court was directed at the prosecutor, not at defendant. The court's decision to 
designate defendant a level-three offender was the product of its reasoned evaluation 
of the severity of the conduct that he had committed, and not any personal animus 
toward him. 
Defendant's other example of supposed personal bias against him is no more 
persuasive. At one point during the hearing, one of defendant's attorneys tried to 
persuade the court that it would be unfair to impose level-three reporting 
requirements on defendant when all of the other states where defendant had homes 
had classified him in a less-severe fashion. Strict reporting requirements would be 
particularly inappropriate, counsel urged, since defendant spent so little time in New 
York in the first place. Defendant's "primary residence is the U.S. Virgin Islands," 
counsel urged; and, in addition to his home in New York, he maintained "vacation" 
homes in Florida and New Mexico as well (H6-7). 
For these reasons, counsel 
suggested, defendant "never comes to New York for more than seven days or at least 
he has not since he has been registered," and "has no intention to ever be here for 
longer than a period of ten days" (H7-8). Defense counsel went so far as to protest 
that level-three registration requirements "actually would require him to come to New 
York more than he does normally" (H8). It was in response to that defense argument 
that the court remarked, "I am sorry that he may have to come here every 90 days. 
He can give up his home if he does want to come every 90 days" (H12). Plainly, 
-54-
EFTA00602395

viewed in context, the now-challenged remarks by the court were not improper in any 
way, and they constituted a direct and appropriate response on the merits to an 
argument that had been made by defense counsel. 
In short, defendant's attempts to discredit the objectivity of the SORA court 
have failed. If this Court were to determine that remand is appropriate to clarify 
some aspect of the SORA ruling, ags infra at 55-62, the case should be heard by the 
judge who actually issued the ruling. 
E. 
Defendant's remaining complaints can be answered more quickly. As noted, 
defendant complains that the court rendered its ruling without affording the parties an 
opportunity to present evidence on disputed issues, and issued an order that lacked 
the requisite findings and conclusions. He also takes some passing swipes at the basis 
for a few of the individual point assessments. 
All of these complaints are 
unpreserved. More fundamentally, though, defendant's failure to protest along these 
lines yields an answer on the merits, as well, for the bulk of these current claims. 
At the hearing, defendant primarily urged that, when assessing his risk-level, the 
court could properly consider only the criminal conduct that had resulted in the 
formal charges against him. Defendant also made some equitable pitches for leniency: 
he quoted the opinion of an individual Florida assistant state's attorney, cited his more 
modest reporting obligations in other states where he maintained similar "vacation" 
-55-
EFTA00602396

homes, and portrayed his presence in New York as a decidedly minimal one. 
Defendant did not, however, take the position that, even if all the information before 
the SORA court were available for assessment, the risk-level calculation made by the 
Board would be unsustainable nonetheless. Likewise, defendant certainly did not 
tackle any of the individual point assessments that the Board had made on the basis of 
the full record before them. Instead, defendant's remarks about the risk level as 
calculated by the Board were limited to stating that he "joined in the prosecutor's 
application" (H8), that the Florida prosecutor had been able to present only one 
"case" to the grand jury (H9), and that "the evidence simply d[d] not support the 
foundation of the state's determination" (H15). 
In keeping with his overarching legal position with respect to all of the 
conduct that was "uncharged," defendant most assuredly did not seek an opportunity 
to present any additional facts. Indeed, while defendant now protests the so-called 
lack of opportunity to "present evidence," it may be that there simply was no 
additional favorable evidence to be presented on his behalf. 
Whatever the reason, 
though, the result was plain: as a tactical matter, defendant chose to accept the factual 
universe as presented, and he used what was largely a legal approach to try to exclude 
the majority of that factual universe from consideration. Since the issues had been 
litigated in that manner, the SORA court cannot reasonably have been responsible for 
a lack of additional evidence on "contested" factual issues (Brief for Defendant at 30). 
-56-
EFTA00602397