EFTA00603264

by clear and convincing evidence, failed to satisfy these basic 
Qconstitutional 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 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 
38 
K&E 414684444182681131 
EFTA00603304

the record in Appellant's case to influence the Court's SORA 
determination. 
A. 
The Court Improperly Assessed Points Against Appellant 
for Conduct That Is Not Scoreable Under SORA. 
First, the SORA Court improperly scored Appellant for alleged 
conduct that is not registerable, and in some cases is not even criminal, 
under New York law with respect to the enegit 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._
11:1-Zps 
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)(0.13
13 
Of course, the exact allegations for which the Court assessed points against 
Appellant are nearly impossible to identify given the Court's failure to articulate 
findings of fact and conclusions of law supporting its scoring of particular factors. 
See RA.-4 (Order efAmmaled From, dated Jan. 18, 2011); A. 
('Fr. generally'. 
Nor did the Board's recommendation tie its scoring to particular facts in its case 
39 
K&E 44368444418268112,11 
EFTA00603305

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. 
gr. 11:1-8731, The fact 
that, even in the People's view, the specific age of the complainant when 
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, 146 
A.D.2d at 440, 541 N.Y.S.2d at 385 (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 
(Tr. 
11:13-12:42712). These improper assessments of points on the RAI 
should render the Court's Level 3 determination invalid. 
summary, which lumped a host of facts together in the aggregate. See RA. 
(Board 
Recommendation). 
14 
Again, the specific basis upon which the Court scored Appellant for certain 
factors cannot be ascertained from the legally deficient Order, see RA.-4  (Order 
efAppealed 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. 
(Tr. 
11:1-23,23).
40 
K&E14468443418268112,11 
EFTA00603306

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 
IQ impinge upon the Court's duty to follow the law. 
The Court 
demonstrated a remarkable disdain and lack of judicial objectivity in its 
response to hearing the District Attorney disavow the reliability of the 
Board's recommendation, in receiving the arguments of counsel for 
Appellant, and in rendering its Order as a whole. 
First, although the SORA statute clearly contemplates that the 
District Attorney may depart from the Board's recommendation based 
upon its own evaluation of the evidence,15 see Correction Law §§ 168-k(2), 
15 
For example, SORA expressly provides, "If the district attorney seeks a 
determination that differs from the recommendation submitted by the board, at least 
ten days prior to the determination proceeding the district attorney shall provide to 
the court and the sex offender a statement setting forth the determinations sought by 
the district attorney together with the reasons for seeking such determinations." 
Correction Law §§ 168-k(2), 168-n(2). While the more common application of this 
provision involves the People seeking a higher risk level than the Board, the 
provision clearly encompasses any deviation from the Board's recommendation, 
including the People's discretion to recommend a lower risk level. See, e.g., People u. 
Ferguson, 53 A.D.3d 571, 572, 862 N.Y.S.2d 95, 96 (2d Dept 2008) (holding that 
41 
K&E 44368444418268112,11 
EFTA00603307

168-n(2), here, the Court rejected the investigation and advocacy of the 
People. Indeed, the Court went so far as to express "shock" that the 
People would support a lower risk level determination than that 
recommended by the Board, almost as a matter of principle. See A. 
fTr. 5:941. The Court disregarded the detailed evidentiary investigation 
and careful parsing of allegations that the People undertook in 
evaluating the Board's recommendation. Ignoring the record at issue 
concerning Appellant and the evidence pertaining to him, the Court 
focused instead on the irrelevant facts of some unidentified case 
completely unrelated to Appellant's: 
10-day notice requirement applies not only to changes in RAI scoring, but to changes 
in factual predicates for RAI scoring). 
Incidentally, it bears noting that the People failed to comply with these 
procedural mandates, constituting a further procedural flaw in these proceedings. 
See Correction Law §§ 168-k(2), 168-n(2). While the People provided Appellant with 
a written alternative RAI immediately prior to the SORA hearing -- and not ten days 
prior to the hearing, as required by SORA -- it appears that the People failed to 
submit their RAI to the Court at all. See RA. generally. Before rejecting out of hand 
the People's stance that a Level 3 determination could not be supported by sufficient 
evidence, the Court should have adjourned the matter to receive and review a written 
statement of the People's recommended determination and supporting reasons. See 
People v. Ferguson, 53 A.D.3d at 572, 862 N.Y.S.2d at 96 (reversing SORA order 
where defendant and court did not receive proper 10-day notice of People's revised 
RAI); cf People u. Jordan, 31 A.D.3d 1196, 1196, 818 N.Y.S.2d 718, 719 (4th Dept 
2006) (holding People's failure to provide sufficient notice of revised RAI was cured 
where Court adjourned matter to allow meaningful opportunity to consider revised 
RAI). The Court's failure to enforce the procedural mandates of the SORA statute 
was prejudicial to Appellant, in that the Court did not have sufficient opportunity to 
42 
K&E 44368444418268112,11 
EFTA00603308

I have to tell you, I am a little overwhelmed 
because I have never seen the prosecutor's office 
do anything like this. I have never seen it. I had a 
case with one instance it was a marine who went 
to a bar, and I wish I had the case before me, but 
he went to a bar and a 17 year old, he was an adult 
obviously, he was a Marine, a 17 year old came up 
to him and one thing lead [stet] to another and he 
had sex with her and the People would not agree 
to a downward modification on that. 
So I am a little overwhelmed here because I see -- I 
mean I read everything here, I am just a little 
overwhelmed that the People are making this 
application. 
I could cite many many, I have done many SORAs 
much less troubling than this one where the 
People would never make a downward departure 
like this.16
A. 
(Tr. 3:21-4:4440). Later, when Appellant's counsel disputed that 
there were any credible -- much less prosecuted -- allegations that 
Appellant ever used force, the Court again began comparing Appellant's 
case to the same irrelevant case about "a marine" -- a matter completely 
unknown to Appellant and having no connection whatsoever to 
understand the compelling reasons for the alternative RAI calculation that the 
People promoted. See id. 
16 
Notably, the People were not asking the Court to make a downward departure 
from the RAI calculation, but were advising the Court that the evidence required a 
recalculation of Appellant's risk level based on the RAI factors. See Sex Offender 
Registration Act: Risk Assessment Guidelines and Commentary, Commentary (2006) 
at 4-5, ¶¶ 5, 6. 
43 
K&E14364144418268112,6 
EFTA00603309

Appellant's case -- seemingly to suggest that Appellant should 
nevertheless be scored as Level 3 under SORA: 
There was no allegation of force in the marine 
either, who met a girl in a bar, a young girl 17, 
there was no force there. 
A.-(Tr. 9:134545).17 The Court's subjective comparison of Appellant's 
case to some unidentified, unrelated case was improper and highly 
irregular, and it clearly interfered with the Court's duty to make an 
assessment based on the law. 
Similarly, in response to an argument by counsel regarding the 
implications that a Level 3 assignment would have on Appellant, who 
does not actually reside in New York, the Court abandoned any 
semblance of judicial objectivity by dismissively suggesting that he 
should "give up his New York home if he does not want to come every 90 
days." 
A. 
(Tr. 12:184949). 
Rather than giving reasoned 
consideration to whether Appellant's residence outside of New York 
might be a relevant factor in its overall risk assessment (such as for a 
downward departure from an RAI calculation), the Court improperly 
17 
Significantly, the Court in fact scored 10 points against Appellant for forcible 
compulsion, despite the parties' agreement that there was no legitimate evidentiary 
basis to score Appellant for the use force or violence. See A. cr. 13:7-713 
44 
K&E 44368444418268112,11 
EFTA00603310

allowed its judgment to be clouded by apparent personal disdain for 
Appellant. 
Furthermore, the Court's apparent personal distaste for Appellant 
has eliminated any likelihood that Appellant will receive a fair 
redetermination hearing should this matter be remanded back to the 
same Justice. Indeed, this Court has recognized that reassignment of a 
matter to a different Justice following appeal is warranted and 
appropriate where the apparent impartiality of the lower court has been 
legitimately questioned, as it most certainly has here. See, e.g., People v. 
Rampino, 55 A.D.3d 348, 349, 865 N.Y.S.2d 77, 78 (1st Dept 2008) 
(remanding resentencing matter to a different Justice where the 
"appearance of fairness and impartiality [was] compromised by the 
actions of the Justice to whom defendant's application was assigned"); 
Fresh Del Monte Produce N.V. v. Eastbrook Caribe, 40 A.D.3d 415, 421, 
836 N.Y.S.2d 160, 166 (1st Dept 2007) (remanding matter to a different 
Justice where "a reasonable concern about the appearance of 
impartiality" had been raised on appeal). Accordingly, should this Court 
deem remand the only appropriate mechanism for recalculating 
45 
K&E 443684444182681124 
EFTA00603311

Appellant's risk assessment level, Appellant respectfully asks that the 
SORA proceeding be reassigned to a different Justice. 
In sum, a court only has discretion to go beyond 
the factors outlined in the SORA guidelines in evaluating a person's risk 
levelfig-the-Gear-t-is-riever-theless-requir-e€14e-e-xerese-suell-thsefetien 
• 
only where justified by clear and convincing evidence. See People v. 
Sherard, 73 A.D.3d 537, 903 N.Y.S.2d 3, 4 (1st Dept 2010) (citing People 
v. Miller, 48 A.D.3d 774, 854 N.Y.S.2d 138 (2008), lv. denied 10 N.Y.3d 
711, 860 N.Y.S.2d 483 (2008)) (holding that where a court exercises 
discretion to depart from the evidence-based scoring of an RAI, the court 
must base such departure on "clear and convincing evidence of 
aggravating factors to a degree not taken into account" in the RAI); see 
also Sex Offender Registration Act: Risk Assessment Guidelines and 
Commentary, Commentary (2006) at 4-5, ¶¶ 5, 6. Here, the Court 
abuacd itASORA determination, made in the express absence of 
4-8-424-eetwee;-the-Gesiet-fally-adepte4-the-Bearths-ealeulatienr  whieh-gave 
Appelhknt-a-preauntpt-ive-retting-ef-Level*aftd-eliel-net-inelieate-t-hat--its-Level-3 
adjuclieetien-weseupwarel-departupe-frein-the-RA4-ealeulatienSee-T-
1.2÷247
18:6 14:0, 15:11 13. In any event, the Court did not and could not eite any factors
eutsi4e-of-the-BeapGrs-c-ensicleratienr proven-by-ele
afKl-eonvineing-eN44eneer thet 
would constitute lawful grounds for an upward departure. Soc Tr. generally. 
46 
K&E 4436844441,83681121 
EFTA00603312

clear and convincing evidence,18 constituted an abuse of 
discretion, warranting reversal of the Court's Level 3 determination and 
Order. 
Moreover, given the Court's demonstrated lack of judicial 
objectivity toward Appellant, should remand be required, Appellant 
respectfully requests that this matter be reassigned to a different Justice 
in the Supreme Court. 
III. THE COURT'S ORDER DOES NOT COMPLY WITH THE 
MANDATES OF SORA AND CONSTITUTIONAL DUE 
PROCESS AND MUST BE VACATED. 
Finally, the Court's Order determining Appellant to be a Level 3 
sex offender is itself facially defective in numerous regards and should be 
vacated as legally invalid. In addition, the Court's failure to set 
forth any factual basis for its Level 3 determination renders the 
Order constitutionally infirm, warrantin • 
due process grounds as well. 
• 
• 
I 
• • 
18 
The Court did not — and could not — cite any factors within or outside 
of the Board's consideration, proven by clear and convincing evidence, that 
would justify a Level 3 determination under• RAI scoring or constitute 
lawful • rounds for an upward departure. See A. 
(Tr. • enerallv . Instead, 
the Court fully adopted the Board's calculation, scoring Appellant a 
presumptive rating of Level 3, without meaning ul inquiry into any of the 
underlying allegations or any consideration of other• evidence which could 
bear upon Appellant's risk level. See A. 
(Tr. 12:21, 13:6-14:9, 15:11-13). 
47 
K&E 4.888841-8.4182681131 
EFTA00603313

SORA provides that it is the "duty of the court" to determine, 
pursuant to the SORA guidelines, both the "level of notification" required 
of an offender and whether any designations defined in section 168-a(7) 
apply. 
Correction Law §§ 168-k(2), 168-n(2). 
In addition, SORA 
mandates that the court "render an order" which sets forth "its 
determinations and the findings of fact and conclusions of law on which 
the determinations are based." Correction Law §§ 168-k, 168-n. 
Here, the Court's compliance with these requirements fell woefully 
short. The only order issued by the Court in this matter was a standard 
oeverboilerplate form where the Court circled a pre-printed number 
and withpxSled a signature and date. See RA. T 4 (Order of Jan. 18, 
2011). In ite apparent hactc to brand Appellant with a Level 3 risk 
assessment, the Court did not even chcck the appropriate place on the 
bellerplate-ferm-that-ne-acielitienal-Elesignatien-applie4-under-SORA,See 
R. 
(Order of Jan. 18, 2011) Appealearrom.,AlatedJan.18,2011). 
Indeed, upon close examination of the only "order" in this matter, it 
appears that the form Order is actually intended to be a cover sheet to 
accompany a more formal order, with written findings of fact and 
conclusions of law, upon submission to the Division. See RA.-4 (Order 
48 
K&E 443684444182681124 
EFTA00603314

e€Appealed From, dated Jan. 18, 2011) (stating, "A copy of the order 
setting forth the risk level and designation determinations, and the 
findings and conclusions of law on which such determinations are based, 
shall be submitted to the Division of Criminal Justice Services' Sex 
Offender Registry Unit by the Court. In addition, please complete and 
attach this form indicating the offender's risk level and designation to 
the Court's order."). Yet this legally insufficient Order was served on 
Appellant following the SORA proceeding and was sent to the Division so 
that the Level 3 determination could be executed and enforced. See RA. 
(Letter of supreme 
Court, dated Jan. 19, 2011). 
The appellate courts have consistently held that cursory, 
non-specific "findings" issued after SORA hearings -- including the 
wholesale adoption of a Board recommendation or recitation of RAI 
factors without further explanation, as the Court offered here -- are 
legally insufficient under SORA. See, e.g. People v. Strong, 77 A.D.3d 
717, 717-18, 909 N.Y.S.2d 734, 734-35 (2d Dept 2010) (reversing SORA 
order issued without findings of fact and conclusions of law, where court 
relied on RAI but failed to introduce the RAI in evidence or indicate any 
evidence relied upon); People v. Gilbert, 78 A.D.3d 1584, 1584, 910 
49 
K&E 443684444182681124 
EFTA00603315

N.Y.S.2d 808, 809 (4th Dept 2010) (holding that the SORA court's 
conclusory recitation that it reviewed the parties' submissions and was 
adopting the Board's case summary and recommendation was 
insufficient to fulfill SORA's statutory mandate); People v. Miranda, 24 
A.D.3d 909, 910-11, 806 N.Y.S.2d 729, 731-32 (3d Dept 2005) (holding 
that the court's adoption of the Board's RAI scores and "generic listing of 
factors" failed to fulfill the statutory mandate" of SORA and precluded 
"meaningful appellate review of the propriety of the court's risk level 
assessment"). 
In addition, the Order in this case is constitutionally 
defi ien . in that the Court's failure to set forth any factual or 
te_gal bases for its Level 3 determination falls short of the 
minimum due process rights guaranteed by the 
U.S. 
Constitution. In the landmark case of Goldberg v. Kelly, the U.S. 
Supreme Court held that, in relevant nartaslemonstrate 
compliance with the procedural due process requirement that 
the decisionmaker's conclusion rest solely on the legal rules and 
evidence adduced at hearing, "the decisionmaker should state 
the reasons for his determination and indicate the evidence he 
50 
K&E 443684444182681124 
EFTA00603316

relied on, though his statement need not amount to a full 
opinion, or even formal findings of fact and conclusions of law." 
Goldberg v. Kelly. 397 U.S. 254. 2.71. 91LS. Ct. 1011. 1O22 (1970) 
(internal citations omitted . 19 In short. the minimal due process 
requirement that the order set forth the basis for the court's 
determination is designed to provide some assurance that the 
court's conclusion rested on sufficient reliable evidence, which 
in Appellant's case, it did not. 
The utterly deficient Order issued by the Court in this matter is 
itself-anether-inetanee-egelear.-legal-ercertingitself provides an 
independent basis for reversal of the Court's Level 3 determination, 
on both state statutory and federal constitutional  grounds. 
CONCLUSION 
For the reasons stated herein, Appellant Jeffrey E. Epstein 
respectfully submits that the January 18, 2011 Order of the New York 
Supreme Court determining Appellant Jeffrey E. Epstein to be a Level 3 
conclusions of law to support its determination, therefore sets forth a 
higher standard than that required by federal due process. See Correction 
LawALThaififizzUrescuiring the court to "render an order setting_forth its 
determinations and the findings of fact and conclusions of law on which 
the determinations are based"). 
51 
K&E 41.36844.1418268112.11 
EFTA00603317

sex offender, without designation, should be vacated, and Appellant's 
SORA level should be recalculated -- either by this Court based on the 
present record or upon remand to a different Justice in the lower court --
in accordance with the law, based solely on the evidence that can be 
proven by clear and convincing evidence, to wit, the undisputed conduct 
encompassed by Appellant's registerable crime of conviction. 
February 22, 2011 
Respectfully submitted, 
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 
Counsel for Defendant-Appellant 
Jeffrey E. Epstein 
52 
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PRINTING SPECIFICATION STATEMENT 
This computer generated brief was prepared using a proportionally 
spaced typeface. 
Name of Typeface: 
Century Schoolbook 
Point Size: 
14-point type 
Line Spacing: 
Double-spaced 
The total number of words in the brief, inclusive of point headings 
and footnotes and exclusive of pages containing the table of contents, 
table of authorities, and printing specification statement is 
[number of words] . 
53 
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CERTIFICATE OF DIGITAL-SUBMISSION COMPLIANCE 
The undersigned hereby certifies that: 
(1) all required privacy redactions have been made and, with the 
exception of those redactions, every document submitted in Digital Form 
or scanned PDF format is an exact copy of the written document filed 
with the Clerk; and 
(2) the digital submissions have been scanned for viruses with the 
most recent version of a commercial virus scanning program (McAfee 
Enterprise 8.5 Virus Scan, updated as of March 9, 2009) and, according 
to the program, are free of viruses. 
Jay P. Lefkowitz, P.C. 
Sandra Lynn Musumeci 
KIRKLAND & ELLIS LLP 
601 Lexington Avenue 
New York, New York 10022 
Telephone: (212) 446-4800 
Facsimile: (212) 446-4900 
54 
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