EFTA00181023

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 A.31 (Information for 
Procuring Person Under 18 for Prostitution, dated June 26, 2008); A.32 
(Guilty Plea, 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 A.53 (Letter from M. Weinberg, dated Aug. 16, 2010, 
at 1, 3). 
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 law. See A.26 (2006 
Grand Jury Indictment of Felony Solicitation of Prostitution); A.32 
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(Guilty Plea, 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 A.26 (2006 Grand Jury Indictment of Felony 
Solicitation of Prostitution); A.31 (Information for Procuring Person 
Under 18 for Prostitution, dated June 26, 2008); A.83:23-84:6, 85:19-
86:1, 90:16-91:15, 95:14-18 (Tr.). 
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 A.32 (Guilty Plea, dated June 30, 2008); A.34 
(Sentence, dated Jun. 30, 2008). Appellant satisfactorily served 13 
months of incarceration (during which time he 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 
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with prior notice and approval by his supervising probation officer) 
without incident. 
See A.49 (Letter from Florida Department of 
Corrections, dated Jul. 21, 2010); A.50 (Letter from Palm Beach 
Sheriffs Office, dated Aug. 12, 2010); A.51 (Letter from J. Goldberger, 
dated Aug. 12, 2010); A.48 (Order Granting Motion for Travel, dated 
Dec. 18, 2009); A.53 (Letter from M. Weinberg, dated Aug. 16, 2010, at 
4). Appellant has had no subsequent instances of misconduct of any 
kind. See A.53 (Letter from M. Weinberg, dated Aug. 16, 2010, at 1). 
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.88:6-15 (Tr.); see also A.51 (Letter from J. 
Goldberger, 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 
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determined that he is only subject to that jurisdiction's lowest reporting 
obligations. See A.88:1-5 (Tr.); see also 14 V.I.C. §§ 1722(b), 1724(d), (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 A.88:21-24 (Tr.). 
Since May 2010, 
Appellant has been registered with the Sexual Offender Monitoring 
Unit (SOMU) of the New York Police Department. See A.88:21-89:3 
(Tr.). 
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. See A.67 
(Letter 
from 
Supreme 
Court, 
dated 
Aug. 
26, 
2010); 
A.65 
(Recommendation of Board of Examiners of Sex Offenders ("Board 
Recommendation").). In stark contrast to the other jurisdictions to have 
considered Appellant's Florida convictions (including Florida), the 
Board recommended that Appellant be assigned the highest risk level --
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. 
EFTA00181050

Level 3, representing a high risk of repeat offense -- without further 
designation.3 See A.67 (Letter from Supreme Court, dated Aug. 26, 
2010); A.65 (Board Recommendation); see also Correction Law § 168-
1(6)(c). 
The Board's recommendation included a Risk Assessment 
Instrument (RAI) that improperly calculated a total risk factor score of 
130. See A.65 (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 A.65 
(Board Recommendation). The Board's RAI did not assign Appellant 
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 
§§ 168.1(2), 168-n(2). 
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 A.65 (Board Recommendation). Appellant submits that this 
scoring is unsupported by the Record. 
8 
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. 
EFTA00181052

any points under the "Post-Offense 
Behavior" and "Release 
Environment" categories. See A.65 (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.6 See A.65 
(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 
A.65 (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 
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, N.Y. Penal Law § 230.25, 
is not itself a registerable offense under SORA. See Correction Law § 168-a(2).) The 
charge of Felony Solicitation of Prostitution, Fla. Stat. § 796.07(2)(f), (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). 
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alleged conduct. 
See A.65 (Board Recommendation). 
Although 
Appellant was only convicted of two prostitution-related offenses and 
was neither charged with nor convicted of any rape, sexual abuse, or 
violent offenses,6 the case summary highlighted hearsay-based claims 
in police paperwork -- namely a probable cause affidavit signed by a 
Palm Beach Police detective that did not result in any of the charges 
sought -- involving alleged sexual abuse of underage girls and an 
alleged forcible rape (which claims were found by the Florida 
prosecutors to be unreliable to support charges against Appellant), and 
assessed points against Appellant based on these unprosecuted 
allegations. See A.65 (Board Recommendation). 
The Board recognized Appellant's conduct on Community Control 
as satisfactory and noted that he has no history of substance abuse. See 
A.65 (Board Recommendation). The Board also credited Appellant with 
accepting 
responsibility 
for his actions. 
See 
A.65 (Board 
Recommendation). 
6 
The only registerable charge for which Appellant was prosecuted and 
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 A.31 (Information 
for Procuring Person Under 18 for Prostitution, dated June 26, 2008); A.53 (Letter 
of M. Weinberg of Aug. 16, 2010, at 1, 3); A.91:20-92:7 (Fr.). 
10 
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, 
I 
EFTA00181056

IV. Pre-Hearing Investigation By the District Attorney 
The SORA hearing, originally scheduled for September 15, 2010, 
was adjourned on consent of the parties until January 18, 2011 to 
provide the New York District Attorney ("the People"), which 
represented the State of New York at the SORA hearing, an 
opportunity to investigate Appellant's Florida convictions and assess 
the validity of the Board's recommendation. See A.81 (Handwritten 
Notations on Court Jacket); A.89:22-90:8 (Tr.). 
As part of their 
investigation, the People were in contact with members of the Palm 
Beach County State's Attorney's Office to understand the investigation 
and prosecution of the allegations at issue in this SORA matter. See 
A.83:14-84:19 (Tr.). 
Based on these interactions with Florida 
prosecutors, the People determined that they could not rely on the 
Board's recommendation and the underlying probable cause affidavit 
(which the Florida prosecutors determined not to be reliable, and which 
therefore certainly could not satisfy the heightened standard of clear 
and convincing evidence), and would score Appellant based only on the 
conduct for which he was actually prosecuted, and not on the 
11 
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i 
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unprosecuted allegations in the probable cause affidavit cited by the 
Board. See A.83:14-84:19 (Tr.). 
Although the People presented Appellant a new SORA risk 
assessment instrument (RAI) immediately before the SORA hearing 
itself, scoring Appellant as a Level 1, the People apparently did not 
present their proposed alternative RAI or any other written submission 
setting forth their departure from the Board's recommendation to the 
Court, as no such statement is in the Court's file. 
See Appendix 
generally. 
V. 
SORA Hearing 
On January 18, 2011, a SORA hearing was conducted in New 
York Supreme Court, Criminal Term, New York County, Part 66 before 
Hon. Ruth Pickholz. 
See A.81 (Handwritten Notations on Court 
Jacket); A.82 (Tr. generally). At the hearing, the People made a record 
that based on their investigation and contact with the Florida 
authorities who handled Appellant's prosecution, the probable cause 
affidavit underlying the Board's recommendation could not be relied 
upon. See A.83:14-18 (Tr.). Specifically, the People informed the Court 
that many of the women referenced as complainants in the police 
12 
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I 
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affidavit were not cooperative with Florida prosecutors, and 
accordingly, the Florida authorities chose not to prosecute any 
allegations other than those reflected by the two offenses to which 
Appellant ultimately pleaded guilty. See A.84:2-6, 14-19 (Tr.). The 
People further noted that in light of Florida's decision not to prosecute 
the majority of the allegations in the affidavit, (and under the SORA 
statute and guidelines), only the conduct pertaining to the sole 
registerable crime for which Appellant was charged and to which he 
pleaded -- Procuring a Person Under 18 for Prostitution, involving a 
single complainant -- could be proven and should be considered in 
evaluating Appellant's SORA score. See A.85:11-16, 85:24-86:1 (Tr.). 
Counsel for Appellant corroborated the record made by the People 
that the Florida Assistant State Attorney who prosecuted Appellant 
determined, after a full investigation, that there were "no victims" and 
that the only crime that could be presented to the grand jury was the 
single solicitation offense to which Appellant pleaded guilty. 
See 
A.89:22-90:21, 95:12-18 (Tr.). 
Appellant disputed many of the 
allegations contained in the Board's case summary, both with respect to 
specific facts (such as the suggestion of any forcible compulsion and the 
13 
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EFTA00181062