EFTA00603264

No. 
New Mark auprente Court 
Appellate Elittisian, 'first £firpttrtutrut 
THE PEOPLE OF THE STATE OF NEW YORK, 
Plaintiff-Respondent, 
v. 
JEFFREY E. EPSTEIN, 
Defendant-Appellant. 
On Appeal from 
Case No. 31029-2010 
APPELLANT'S BRIEF 
Jay P. Lefkowitz, P.C. 
[email protected] 
Sandra Lynn Musumeci 
[email protected] 
KIRKLAND & ELLIS LLP 
601 Lexington Avenue 
New York, New York 10022 
Telephone: (212) 446-4800 
Facsimile: (212) 446-4900 
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Counsel for Defendant-Appellant 
Jeffrey E. Epstein 
TABLE OF CONTENTS 
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TABLE OF AUTHORITIES 
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PRELIMINARY STATEMENT 
Appellant Jeffrey E. Epstein seeks to vacate the final decision and 
order of the New York Supreme Court, Criminal Term, New York 
County, determining him to be a Level 3 sex offender, without 
designation, under New York's Sexual Offender Registration Act 
(SORA), Correction Law Article 6-C, based on a 2008 Florida conviction 
by plea of guilty to Procuring a Person Under 18 for Prostitution, Fla. 
Stat. § 796.03, and Felony Solicitation of Prostitution, Fla. Stat. 
796.07(2)(O, for which Appellant was sentenced to consecutive terms of 
12 months and 6 months incarceration, followed by 12 months of 
Community Control. (Pickholz, J. at SORA hearing). Appellant seeks to 
vacate the Order because the Court's risk level determination was not 
supported by clear and convincing evidence, was based on improper 
considerations, and was made without affording the parties an 
opportunity to present evidence concerning disputed relevant issues. 
More specifically, in making its determination, the Court summarily 
adopted the recommendation of the Board of Examiners of Sex 
Offenders ("the Board" I, notwithstanding the position of the District 
Attorney's Office that the Board's recommendation was legally infirm 
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and not supported by provable evidence. Additionally, the Court issued a 
facially defective Order that fails to set forth findings of fact and 
conclusions of law, as required by law. 
Accordingly, the Order 
determining Appellant to be a Level 3 sex offender should be vacated, 
and Appellant's risk level should be recalculated based solely only 
those factors that may be properly considered under SORA and which 
are proven by clear and convincing evidence. 
QUESTIONS PRESENTED 
1. 
May the Court determine Appellant's risk level under SORA 
based on factors that are not proven by clear and convincing evidence? 
2. 
Is the Court entitled to adopt the Board's recommendation in 
full, without hearing any further evidence, where Appellant disputes 
numerous unprosecuted allegations contained therein and the District 
Attorney, as representative of the State, disclaims the Board's 
recommendation as unreliable, based on allegations that were 
determined to be not prosecutable, and not provable by clear and 
convincing evidence? 
3. 
In calculating Appellant's risk level under SORA, may the 
Court score points for consensual prostitution-related conduct involving 
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women who were seventeen years of age or over, particularly where 
SORA provides that such conduct is only registerable where the person 
patronized "is in fact less than seventeen years of age," Correction Law § 
168-a(2)(a)(i)? 
4. 
Where the Court's Order assigning Appellant a risk level of 3 
under SORA does not include any findings of fact or conclusions of law to 
support a Level 3 determination, must that Order be vacated? 
STATEMENT OF FACTS 
Defendant-Appellant Jeffrey E. Epstein is a 58-year old financial 
advisor and philanthropist whe-keeps-hiewhose primary residence min 
the U.S. Virgin Islands and who maintains vacation properties in New 
York, Florida, and New Mexico. See RA. 
(Letter of M. Weinberg of 
Aug. 16, 2010).1 Appellant does not live in New York, and since the 
commission of the Florida offense that forms the basis of this matter, he 
has not stayed iftat his New York property for periods emeeeilingof ten 
days, or more at a time. See RA. 
(Letter of M. Weinberg of Aug. 16, 
2010); A. 
(Tr. 6:21-25, 7:21-8:3412
1 
References to the Record on appeal, presented as an Appendix, are denoted 
herein as "RA." followed by the applicable Appendix page_number. 
2 
References to the transcript of the January 18, 2011 SORA hearing are 
denoted herein as 'Pr." followed by the applicable page and line citation. 
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I. 
The Underlying Offense 
On June 30, 2008, Appellant pleaded guilty in the Circuit Court for 
Palm Beach County, Florida under an Information to the charge of 
Procuring a Person Under 18 for Prostitution, Fla. Stat. § 796.03, an 
offense which required him to register under Florida's sexual offender 
registration statute, Fla. Stat. § 943.0435. See RA. 
(Palm Beach 
County  31 (Information 08CF9381); R.  for Procuring Person 
Under 18 for Prostitution,
tne 26, 2 
 • A.32 ( milty  Plea 
ef-Jun7, dated June 30, 2008). This single registerable charge was 
brought in connection with a consensual, commercial arrangement in 
which Appellant received massages and engaged in sexual conduct with 
A.D., a young woman who was over the age of consent under New York 
law but just under 18 when the offense in the Information occurred back 
in 2005. See RA. 
(Letter e€from M. Weinberg-of, dated Aug. 16, 
2010)2010, at 1, 27a Appellant concurrently pleaded guilty to an 
Indictment charging him with one count of Felony Solicitation for 
Prostitution, Fla. Stat. §§ 796.07(2)(0, (4)(c);=  a solicitation offense 
which does not include any elements of sexual contact with underage 
women and which is not registerable under either Florida or New York 
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law. See RAP-alpeaeh-GenntyA.26 (2006 Grand Jury Indictment;
Spring Torm 2006); R.  
of Felony Solicitation of Prostitution); 
At_32 (Guilty  Plea of Jun., dated June 30, 2008); Fla. Stat. § 943.0435; 
Correction Law § 168-a(2)(a). Despite an extensive investigation by 
Florida prosecutors regarding various other complaints alleged against 
him and reported in police paperwork, Appellant was never charged with 
any other crimes or prosecuted on allegations made by any other 
complainants. See R. 
(Palm Beach CountyA.26 (2006 Grand Jury 
Indictment, Spring Torm 2006); R. 
(Palm Beach County  of Felony 
Solicitation of Prostitution); A.31 (Information 08CF9381); for 
Pr i urine Person Under 18 for Prostitution, dated June 26, 
2008): A. 
(Tr. 2:23-3:6, 4:19-5:1, 9:16-10:15, 14:14-48718).
As a result of his two concurrent Florida convictions -- the first and 
only criminal convictions of his life -- Appellant was sentenced to 
consecutive terms of 12 months and 6 months incarceration in a Palm 
Beach County Detention Facility, followed by 12 months of Community 
Control supervision. See RA.-32  (Guilty  Plea-ef-Jurh, dated June 30, 
2008); RA.-34  (Sentence of Jun., dated June 30, 2008). Appellant 
satisfactorily served 13 months of incarceration (during which time he 
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was granted permission to participate in the Sheriffs work release 
program) and completed a subsequent period of 12 months Community 
Control (during which the Court trusted him, for business purposes, to 
travel outside of Florida with prior notice and approval by his 
supervising probation officer) without incident. See RA. 
(Letter ef-C, 
Elkinse€from Florida Department of Corrections, dated Jul. 21, 
2010); RA. 
(Letter ef-Famith-effromPalm Beach Sheriffs Offim, 
dated Aug. 12, 2010); RA. 
(Letter effrom J. Goldberger—ef,_slated
Aug. 12, 2010); RA. 
(Order enGranting Motion effor Travel, dated 
Dec. 18, 2009); RA. 
(Letter &€from M. Weinberg-e€, dated Aug. 16, 
2010)2010, at 44L Appellant has had no subsequent instances of 
misconduct of any kind. See RA. 
(Letter effrom M. Weinberg-e€, 
dated Aug. 16, 2010)2010, at
II. 
Sex Offender Registration 
As required under Florida law in connection with his conviction for 
Procuring a Person Under 18 for Prostitution, Fla. Stat. § 796.03, 
Appellant registered as a sex offender with Florida authorities and was 
designated at the lowest level under that state's sex offender registration 
act. See A. 
(Tr. 7:6-151; see also RA. 
(Letter effrom J. Goldberger 
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of, dated Aug. 12, 2010); Fla. Stat. §§ 775.21, 943.0435. Appellant also 
registered in his home jurisdiction of the U.S. Virgin Islands (where 
Appellant maintains his primary residence and actually lives), where 
authorities reviewed Appellant's Florida offenses and determined that 
he is only subject to that jurisdiction's lowest reporting obligations. See 
A„_(Tr. 7:1-51; see also 14 V.I.C. §§ 1722(6), 1724(d), (e). In order to 
ensure his full compliance with the federal Sexual Offender Registration 
and Notification Act (SORNA), 42 U.S.C.A. § 16901 et seq., Appellant 
also registered as a sex offender in New York and New Mexico, two states 
where he maintains secondary residences. See is___(Tr. 7:16-8:7,11„
Significantly, New Mexico determined that Appellant is not required to 
register at all under the state's sex offender registration scheme. See 
A. 
(Tr. 7:16-201; see also N.M.S.A. 1978, § 29-11A-3(E). 
Although he does not actually reside in New York, before the 
completion of his term of Community Control, Appellant notified the 
New York State Division of Criminal Justice Services ("the Division") of 
his registerable Florida conviction and his ownership of a secondary 
residence in New York. See se±,__ITr. 7:2144241 Since May 2010, 
Appellant has been registered with the Sexual Offender Monitoring Unit 
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(SOMU) of the New York Police 
and
SOMU-appitise41-ef-acky-teraperary-trazoiel-he-has-maile-teaw--Yerk. See 
A. 
(Tr. 7:21-8:331,
III. The Board's Recommendation 
On or about August 26, 2010, Appellant received notice that a 
SORA hearing had been scheduled to determine a risk assessment level, 
accompanied by a copy of the recommendation of the Board-ef-Exam.inefe 
ef-Sex-Offenders-r-The-13ear-44. 
See RA. 
(Letter ef-M, Pr-iee-eff_rom 
Supreme Court, dated Aug. 26, 2010); itrA 
(Board Recommendation 
of Board of Examiners of Sex Offenders (Board Recomrnendationn). 
In stark contrast to all of the other jurisdictions to have considered 
Appellant's Florida convictions (including Florida), the Board 
recommended that Appellant be assigned the highest risk level -- Level 
3, representing a high risk of repeat offense -- without further 
designation.3 See BA. 
(Letter of M. Price o€from Supreme Courts
dated Aug. 26, 2010); BA. 
(Board Recommendation); see also 
Correction Law § 168-1(6)(c). 
3 
SORA requires the Board to recommend an offender's notification level of 1, 2, 
or 3, pursuant to Correction Law § 168.1(6), and to recommend whether any 
designations defined in Correction Law § 168-a(7) apply. See Correction Law 
§§ 
168-k(2), 168-n(2). 
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The Board's recommendation included a Risk Assessment 
Instrument (RAI) that improperly calculated a total risk factor score of 
130. See RA. 
(Board Recommendation). Almost all of the points 
scored by the Board were based on "Current Offense" factors,4 including: 
10 points for "Use of Violence" (forcible compulsion); 25 points for 
"Sexual Contact with Victim" (sexual intercourse and deviate sexual 
intercourse); 30 points for "Number of Victims" (3 or more); 20 points for 
"Duration of Offense Conduct with Victim" (continuing course of sexual 
misconduct); and 20 points for "Age of Victim" (11 through 16). See RA. 
(Board Recommendation). The Board's RAI did not assign Appellant 
any points under the "Post-Offense 
Behavior" and "Release 
Environment" categories. See RA. 
(Board Recommendation). 
In its "Case Summary," the Board noted that Appellant was 
convicted of just two Florida sex offenses: (1) Procuring a Person Under 
18 for Prostitution, and (2) Felony Solicitation of Prostitution.5 See RA. 
4 
The Board also assessed Appellant 5 points for "Criminal History," even 
though the Board itself noted that it was assessing points "absent specific 
information." See RA. 
(Board Recommendation). Appellant submits that this 
scoring is unsupported by the record. 
5 
Only one of these charges -- the procurement charge -- is registerable under 
SORA, and that charge is registerable under SORA only because it is registerable in 
Florida. See Correction Law § 168-a(2)(d)(ii). (Notably, the New York cognate of this 
offense, Promoting Prostitution in the Third Degree, M. § 230.25, is not itself a 
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(Board Recommendation). The Board then aggregated into just over a 
single page a host of uncharged allegations made by "numerous females," 
including "female participants [who] were age 18 or older," regarding 
"massages and unlawful sexual activity" that allegedly took place at 
Appellant's Florida residence. See RA. 
(Board Recommendation). The 
case summary referred to "vaginal intercourse" and various other forms 
of sexual contact allegedly taking place without connecting specific 
females to such allegations, and more significantly, without identifying 
the age of the participants -- some of whom the Board noted were "age 18 
or older" -- specifically at the time of such alleged conduct. See BA. 
(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 
registerable offense under SORA. See Correction Law § 168-a(2).) The charge of 
Felony Solicitation of Prostitution, Fla. Stat. § 796.07(2)(0, (4)(c) -- which does not 
include any age-related elements and pertains solely to consensual, commercial 
conduct -- is not a registerable offense under either Florida or New York law. See Fla. 
Stat. § 943.0435; Correction Law § 168-a(2)(a). 
6 
The only registerable charge for which Appellant was prosecuted and 
convicted pertained to consensual, commercial, non-violent interaction with one 
woman, A.D., 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 RA. 
(Palm Beach 
County 31 (Information 08GF9384-
for Procuring Person Under 18 for 
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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 
ricla  prosecutor 
unreliable to support charges against Appellant), and assessed 
points against Appellant based on these unprosecuted allegations. See 
RA. 
(Board Recommendation). 
The Board recognized Appellant's conduct on Community Control 
as satisfactory and noted that he has no history of substance abuse. See 
RA. 
(Board Recommendation). The Board also credited Appellant 
with accepting responsibility for his actions. 
See RA. 
(Board 
Recommendation). 
III. 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 
Prostitution, dated June 26. 2008): Ai_  (Letter effrom M. Weinberg-ef, dated
Aug. 16, 2010)2010, at 1, 3); A. 
(Tr. 10:20-11ga 
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the Board's recommendation. 
See RA. 
(Qom*Handwritten 
Notations on Court Jacket); A. 
 r. 8:22-9:8,8). 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. (Tr. 2:14-3:49719). 
Based on these interactions with Florida 
prosecutors, the People determined that they weuld-depart-f-remeauld 
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 based-on all of  the 
unprosecuted allegations in the probable cause  affidavit en 
whiehcited by the BoardIs-reeemmendatien-was-base€1. See A. (Tr. 
2:14-3:4949).
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 
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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 RA. generally. 
IV. SORA Hearing 
On January 18, 2011, a SORA hearing was conducted in New York 
Supreme Court, New York County, Criminal Term, Part 66 before Hon. 
Ruth Pickholz. See RA. 
(CaseHandwritten Notations on Court 
Jacket); A. 
(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 
2:1448718). Specifically, the People informed the 
Court that many of the women referenced as complainants in the police 
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. (Tr. 3:2-6, 14-49711), The People further noted that, in 
light of Florida's decision not to prosecute the majority of the allegations 
in the affidavit' land under the SORA statute and guidelines), only the 
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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. (Tr. 
4:11-16, 4:24-5:4,A 
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 
A, (Tr. 8:22-9:21, 14:1248718). 
Appellant disputed many of the 
allegations contained in the Board's case summary, both with respect to 
specific facts (such as the abeeneesuagestion of any forcible compulsion 
and the exact age of complainant A.D. at the time of specific conduct) and 
more broadly by noting that the Board's recommendation was based on 
police documentation that was not credible and that contained hearsay 
allegations that the lead sex crimes prosecutor in Florida decided not to 
prosecute. 
See A. (Tr. 9:9-12, 11:13-21, 14:12-4848). 
Further, 
Appellant advised the Court that there was sworn testimony from many 
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of the women referenced in the police paperwork and the Board-'s case 
summary which expressly disclaimed allegations attributed to them. See 
A. (Tr. 14:19-23723)t
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. (Tr. 12:21, 13:6-14:9t The Court did 
not conduct any factual hearing as to specific claims for which points 
were assessed. See A. 
 
generallyl. 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 evidence. See A. 
(Pr. 13:7-14:941 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 
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offender with no additional designation. 
See A. 
(Tr. 12:21, 
12:25-13:3,a 
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. 
(Tr. 13:6-14:991s In its written Order, 
the Court indicated a final risk level determination of Level 3 by merely 
circling a pre-printed form but did not indicate that no additional 
. See 
A.-4 (Order efAppealed From, dated Jan. 18, 2011). The Court 
failed to articulate any findings of fact or conclusions of law, as required 
under SORA. See RA.-4 (Order ef4pnealed From, dated Jan. 18, 
2011); A_ (Tr. generallyl. 
Appellant was served with a copy of the Court's Order on or about 
January 19, 2011. See RA. 
(Letter of F.  Halwiek-effrom 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 invoke this Court's jurisdiction. 
See It
{A.4((Irder 
Appealed From, dated Jan. 18, 2011, with  Notice of Entry of Fob. 9, 
2044); RA.-3  (Appellant's  Notice of Appeal-94 dated Feb. 9, 2011). 
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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 
triple hearsay allegations cited in the Board's recommendation that were 
squarely rejected as a basis for state prosecution in Florida, were 
7 
Appellant asks this Court to render its own findings of fact and conclusions of 
law -- assigning a risk Level 1 -- based on an appropriate consideration of the 
undisputed facts in the record proven by clear and convincing evidence concerning 
Appellant's conviction. To the extent this Court is unable to issue findings of fact and 
conclusions of law based on the present record, Appellant seeks remand in the lower 
court before a different Justice for a recalculation in which the parties are afforded 
an opportunity to present evidence regarding contested relevant issues, if necessary. 
See Section II(B), euppainfra.. 
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