EFTA00205712.pdf

Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 1 of 16 EXHIBIT A EFTA00205712 Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 2 of 16 SORA HEARING page 1 1 SUPREME COURT NEW YORK COUNTY TRIAL TERM PART 66 2 x THE PEOPLE OF THE STATE OF NEW YORK: INDICTMENT # 3 : 30129/2010 • 4 AGAINST • • 5 • • JEFFREY EPSTEIN 6 Defendant. x SORA HEARING 7 111 Centre Street 8 New York, New York 10013 January 18, 2011 9 10 BEFORE: 11 HONORABLE RUTH PICKHOLZ 12 Justice of the Supreme Court 13 14 APPEARANCES: 15 For the People: CYRUS R. VANCE, JR., ESQ., 16 New York County District Attorney One Hogan Place 17 New York, New York 10013 BY: JENNIFER GAFFNEY, ESQ. 18 Assistant District Attorney 19 For the Defense: KIRKLAND & ELLI, LLP 20 153 East 53rd Street New York, New York 10022 21 BY: JAY LEFKOWITZ, ESQ. SANDRA MUSUMECI, ESQ. 22 23 Vikki J. Benkel 24 Senior Court Reporter 25 Vikki J. Benkel Senior Court Reporter EFTA00205713 . Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 3 of 16 SORA HEARING page 2 1 COURT CLERK: This is number two on the calendar, 2 matter of Jeffrey Epstein. 3 Your appearances please. 4 MS. GAFFNEY: Jennifer Gaffney for the People. 5 Good afternoon, Your Honor. 6 MR. LEFKOWITZ: Jay Lefkowitz and Sandra Musumeci 7 for Mr. Epstein. 8 THE COURT: Mr. Epstein is not here. 9 MR. LEFKOWITZ: That's correct. 10 THE COURT: Are you waiving his appearance? 11 MR. LEKWOWITZ: Yes. 12 MS. GAFFNEY: Your Honor, this case is on for a 13 C4 14 SORA hearing this afternoon. The People did receive the board's recommendation 15 of a Level Three. However, we received the underlying 16 information from them and also had some contact with 17 Florida, and we don't believe that we can rely on the entire 18 probable cause affidavit. 19 I don't know if the board sent that to you as 20 well. 21 THE COURT: I don't know why you cannot rely on 22 it. 23 MS. GAFFNEY: Because in Florida of all of the 24 victims in that probable cause affidavit, they actually only 25 went forward on one case. There was only an indictment for Vilai J. Both& Senior Court Reporter EFTA00205714 Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 4 of 16 SORA HEARING page 3 1 one victim and that is what the defendant plead to. 2 So it is unlike a situation where everything was 3 indicted and then we get to sort of assess points for all of 4 the victims, if it was part of a plea bargain. They did not 5 actually choose to go forward on any except for the one 6 victim. 7 So under the board guidelines, the risk assessment 8 interim guidelines, it actually says, you know, by way of 9 contrast if an offender is not indicted for an offense, it 10 is strong evidence that the offense did not occur and I 11 don't think -- 12 THE COURT: Do you find that if somebody is not 13 indicted it is strong evidence that it did not occur? 14 MS. GAFFNEY: I don't know that we can rely on it 15 as clear and convincing evidence if the prosecutor's office 16 never went forward on it. The prosecution said that the 17 victims, although they spoke to the police early on, did not 18 cooperate with them. So we don't have any follow up 19 information. 20 THE COURT: But the board found a Level Three. 21 I have to tell you, I am a little overwhelmed 22 because I have never seen the prosecutor's office do 23 anything like this. I have never seen it. I had a case 24 with one instance it was a marine who went to a bar, and I 25 wish I had the case before me, but he went to a bar and a 17 Vikki J. Betake! Senior Court Reporter EFTA00205715 . Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 5 of 16 SORA HEARING page 4 1 year old, he was an adult obviously, he was a Marine, a 17 2 year old came up to him and one thing lead to another and he 3 had sex with her and the People would not agree to a 4 downward modification on that. 5 So I am a little overwhelmed here because I see -- 6 I mean I read everything here, I am just a little 7 overwhelmed that the People are making this application. 8 I could cite many many, I have done many SORAs 9 much less troubling than this one where the People would 10 never make a downward argument like this. 11 MS. GAFFNEY: I agree with Your Honor, it is 12 incredibly unusual for us to make a downward argument. But 13 the problem is the one thing that we have from the board is 14 it seems to be in contradiction to their own guidelines 15 which if something was not indicted, you are not supposed to 16 rely on it. 17 THE COURT: They obviously took that into 18 consideration. 19 MS. GAFFNEY: And I tried to reach -- I reached 20 the authorities in Florida to try to see if they had all the 21 interview notes or other things that we can then 22 subsequently rely on that might be considered clear and 23 convincing evidence, if they had interviewed these women on 24 their own, and they never did. No one was cooperative and 25 they did not go forward on any of the cases and none of them Vikki J. Benkel Senior Court Reporter EFTA00205716 . Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 6 of 16 SORA HEARING page 5 1 were indicted. So I don't know. • 2 THE COURT: And you spoke to the prosecutor? 3 MS. GAFFNEY: The actual prosecutor left the 4 office. I spoke to the prosecutor that took over the case. 5 THE COURT: Maybe you can find the prosecutor that 6 left the office. 7 You have done more in other cases looking into it. 8 I have never seen the prosecutor's office do this. I have 9 to tell you, I am shocked. 10 MS. GAFFNEY: Right, but I spoke to the prosecutor 11 that took over the case and they don't have anything, any 12 affidavits, any statements, any notes. 13 THE COURT: Why don't you speak to the prosecutor 14 that did do the case, I am sure you could find that 15 prosecutor. 16 MS. GAFFNEY: I can find her, but based upon what 17 the other prosecutor said, they did not speak to that 18 prosecutor either. 19 THE COURT: You did not speak to the prosecutor 20 yourself, you did not speak to them, that is hearsay. You 21 did not speak to the prosecutor that handled the case. 22 MS. GAFFNEY: That's right. 23 THE COURT: I don't think you did much of an 24 investigation here. 25 MS. GAFFNEY: I mean I called the prosecutor. Vikki J. Benkel Sensor Court Reporter EFTA00205717 Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 7 of 16 SORA HEARING page 6 1 Even though the first prosecutor left, presumably the 2 prosecutor's office has the file. 3 THE COURT: I would still call the prosecutor. 4 MS. GAFFNEY: Anything from these women they would 5 have forwarded it to us. 6 THE COURT: I don't know that, I think you have to 7 speak to the prosecutor. 8 But be that as it may, I hear your argument. 9 Anything else? 10 MS. GAFFNEY: I mean that is why I don't think we 11 can, I don't think we are entitled to rely on this because 12 they did not go forward. 13 THE COURT: The board made a recommendation. 14 MS. GAFNEY: Correct. 15 MS. MUSUMECI: May I speak, Your Honor? 16 THE COURT: Yes. 17 MS. MUSUMECI: Good afternoon. 18 I would like to bring a few additional points to 19 Your Honor's attention that don't come across in the board 20 recommendation. 21 The first is that Mr. Epstein is not a resident of 22 New York, unlike most of these out of state, he has not 23 changed his address and moved to New York, he maintains a 24 vacation home in New York. His primary residence is the 25 U.S. Virgin Islands. VikkiJ. Benket Senior Court Reporter EFTA00205718 Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 8 of 16 SORA HEARING page 7 1 He is registered in the U.S. Virgin Islands, he 2 has been since his release from jail. He notifies the 3 Virgin Island authorities every time he leaves that 4 jurisdiction. Virgin Island authorities rated him at the 5 lowest level of registration. 6 He also registered in Florida, which is the state 7 of this particular offense, and the only reason that this 8 conviction is even before Your Honor. 9 The offense for which he NOS convicted is not a 10 registrable offense in New York. He is only registrable 11 here arguably because based on the provision of SORA that 12 says if a crime is registrable in the state of conviction, 13 then it is registrable here in New York. And the Florida 14 authorities that considered that rated him at the lowest 15 level of their SORA statute. 16 He additionally has a vacation home in New Mexico 17 and is registered in New Mexico. The New Mexican 18 authorities when they considered his offenses, determined he 19 need not register at all. Nevertheless, he has voluntarily 20 registered with New Mexico and maintains that registration. 21 Additionally, because of his possession of a 22 vacation home in New York, he has been voluntarily 23 registered with New York SOMU, the Sex Offender Monitoring 24 Unit since May of this year. He notifies them whenever he 25 comes to travel to New York. He never comes to New York for Vikki J. Benkel Senior Court Reporter EFTA00205719 . Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 9 of 16 SORA HEARING page 8 1 more than seven days or at least he has not since he has 2 been registered. He has no intention to ever be here for 3 longer than a period of ten days. 4 Like I said, he does notify the authorities when 5 he is here. He fully understands the reason for voluntary 6 registration, he wants to be compliant with the Federal SORA 7 law which requires wherever you own a property to register. 8 To require Mr. Epstein to register as a Level 9 Three offender in New York would actually require him to 10 come to New York more than he does normally, it would 11 require him to come every 90 days and renew his 12 registration. 13 He is very diligent in registering with New York 14 authorities. 15 All of the other jurisdictions that have 16 considered his case have determined that he either not 17 register at all or register at the lowest level, and he has 18 been more than compliant with all of those requirements. 19 Your Honor, we would join in the prosecutor's 20 application. 21 THE COURT: I am sure you would. 22 MS. MUSUMECI: By way of background, we have been 23 in contact with the prosecutor's office on this matter since 24 I believe certainly since Mr. Epstein got his notification, 25 which I believe was in August. We have met with the Vikki J. Rothe! Senior Court Reporter EFTA00205720 Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 10 of 16 SORA HEARING page 9 1 prosecutor and provided numerous materials for the 2 prosecutor to consider. We have included in that a 3 deposition from the detective who headed this investigation 4 who acknowledged in a sworn deposition that the lead 5 prosecutor who originally had the case, whose name I cannot 6 pronounce, Lanna Belohlavek, I apologize for the 7 mispronunciation, said to the detective after her 8 investigation, there are no real victims here. 9 All of the alleged conduct that is cited in the 10 board's write up was commercial conduct. All of the alleged 11 conduct the women went voluntarily, there are no allegations 12 of force certainly none. 13 THE COURT: There was no allegation of force in 14 the marine either, who met a girl in a bar, a young girl 17, 15 there was no force there. 16 MS. MUSUMECI: It is our understanding that the 17 prosecutor in Florida conducted a full investigation, as 18 full as she was able with the cooperation afforded by these 19 complainants, and determined that the only case that she 20 could present to the grand jury was this indictment for a 21 non registrable offense then -- 22 THE COURT: But it is registrable here. 23 I don't know what you mean non registrable 24 offense. 25 MS. MUSUMECI: Let me explain, Your Honor. Vikki J. Benkel Senior Court Reporter EFTA00205721 Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page it of 16 SORA HEARING page 10 1 Mr. Epstein plead to two charges, one was an 2 indictment which is an offense that is not registrable, it 3 is a Florida indictment for -- 4 THE COURT: Then why does he have to register 5 here? 6 MS. MUSUMECI: It was a second offense that he 7 plead to -- 8 THE COURT: That is registrable. 9 MS. MUSUMECI: That is registrable. 10 That offense was by information and that is the 11 only registrable offense, that is what the DA's office is 12 considering in doing their scoring. 13 The indictment which was the only case that the 14 prosecutor even prosecuted through grand jury is not even a 15 registrable offense. 16 THE COURT: He plead guilty to a registrable 17 offense. 18 MS. MUSUMECI: Yes. 19 THE COURT: What did he plead guilty to? 20 MS. GAFFNEY: He plead guilty to the procuring a 21 person under 18 for prostitution. 22 THE COURT: Procuring a person under 18 for 23 prostitution. 24 MS. GAFFNEY: Right. 25 THE COURT: Haw old was she? Vikki J. Benkel Senior Court Reporter EFTA00205722 Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 12 of 16 SORA HEARING page 3.1 1 MS. GAFFNEY: It appears the first time they met 2 she was either 16 or 17, then for the remainder of their 3 relationship she was probably 17. 4 THE COURT: Haw long was their relationship? 5 MS. GAFFNEY: She met, she gave him approximately 6 15 massages, including with sexual contact, and ultimately 7 when she is 17 had intercourse with him. 8 THE COURT: She is a child. 9 MS. MUSUMECI: Your Honor, I would note that under 10 SORA it is clear that prostitution offenses are only 11 registrable when in fact by clear and convincing evidence 12 the women or victim is 17, is under 17. 13 THE COURT: Well, she met him at 16, he procured 14 her at 16 from what I read. 15 MS. MUSUMECI: There is evidence we challenged. 16 THE COURT: He plead guilty to that, didn't he? 17 MS. MUSUMECI: He plead guilty to under 18, which 18 is the law in Florida, which is a different standard than 19 what the law is in New York. And there is no evidence, 20 there is no clear and convincing evidence as to her specific 21 age at the time of the specific conduct. 22 THE COURT: Well, the DA just told me she was most 23 likely 17, she just said it on the record. 24 MS. MUSUMECI: Your Honor, we agree that the 25 evidence is that she was 17 on the one occasion she had Vikki J. Benkel Senior Court Reporter EFTA00205723 Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 13 of 16 SORA HEARING page 12 1 consensual intercourse with him and 17 is not registrable or 2 criminal under New York law. 3 And the prostitution aspect of having intercourse 4 with a 17 year old is not registrable conduct. 5 THE COURT: Why does he have to register here? 6 MS. GAFFNEY: Because it is a register able 7 offense in Florida, New York State board of examiners -- 8 THE COURT: Recognizes it. 9 MS. GAFFNEY: Recognizes it, yes. 10 THE COURT: I have had many cases like that where 11 it was not registrable here but it was in the state where 12 the person came from and New York recognized that. 13 MS. MUSUMECI: Your Honor, we are not saying that 14 he should not register. Mr. Epstein has already registered 15 and recognizes his duty to register. 16 THE COURT: I am glad of that, very glad of that. 17 I am sorry he may have to come here every 90 days. 18 He can give up his New York home if he does not 19 want to come every 90 days. 20 Anything else? 21 I rely on the board. 22 MS. MUSUMECI: Your Honor, we would reserve our 23 right to appeal Your Honor's ruling. 24 THE COURT: Of course, do so. 25 MS. GAFFNEY: For the record, Your Honor, he is Vikki.1. Benkel Senior Court Reporter EFTA00205724 Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 14 of 16 SORA HEARING page 13 1 going to be deemed a Level Three sex offender with no 2 designation, correct? 3 THE COURT: Correct. 4 MS. MUSUMECI: For purposes of the appeal I 5 believe that Your Honor -- 6 THE COURT: Give me the board's scoring. 7 The board has scored use of violence the least, 8 10. 9 Sexual contact with victim, 25. I agree. 10 Number of victims, three or more. He only plead 11 guilty to one, but apparently there were more than one and I 12 think the People concede that although they say it was not 13 reliable. 14 Duration of offense, conduct with victim, 15 continuing course of sexual misconduct, the People have told 16 me it was continuing for 20 points. 17 Age of victim 11 through 16, he got 20 points for 18 that, and she was 16 at the time. 19 Other victim characteristics, there was no mental 20 disable or helplessness. I agree. 21 Relationship with victim stranger, 20 points. 22 Age at first act of sexual misconduct, 20 or less. 23 They scored him zero on that. 24 Number and nature of prior crimes, no history, 25 they scored him five on that. Vikki J. Benkel SeniorCouniteinoie, EFTA00205725 Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 15 of 16 SORA HEARING page 14 1 Recency of prior offense less than three years, 2 they gave him zero. 3 Drug or alcohol abuse history, they gave him zero. 4 Acceptance of responsibility, they gave him zero. 5 Conduct while confined, they gave him zero. 6 And supervision, they gave him zero. 7 Living employment situation, zero. 8 They gave him 130 points, which is the highest 9 level, and I agree with that. 10 MR. LEFKOWITZ: If I could be heard for one 11 moment. 12 It appears that the state board made its 13 determination based on access to a police report in Florida. 14 The prosecutor, the lead prosecutor, the lead sex 15 crimes prosecutor in Palm Beach made a determination that 16 the complainants and the police report itself was not 17 credible and decided not to prosecute on the basis of all of 18 that. 19 In addition, there has been through the course of 20 the last few years some civil litigation, as you might 21 imagine, involving these matters and we now have sworn 22 testimony in evidence from the complainants themselves 23 disclaiming much of what appears in the police report. 24 So, Your Honor, we would submit and this is not to 25 make light in any way of the conduct what Mr. Epstein did or Vikki .1. Benkel Senior Coon Reporter EFTA00205726 Case 9:08-cv-80736-KAM Document 106-1 Entered on FLSD Docket 10/10/2011 Page 16 of 16 SORA HEARING page 15 1 what Mr. Epstein plead guilty to, but with respect to 2 everything and that is why Mr. Epstein voluntarily 3 registered in New York even though there is a question about 4 whether he has any obligation just as a jurisdictional 5 matter, but Your Honor, with respect to the appropriate 6 level for him to register, we would submit Your Honor that 7 the evidence simply does not support the foundation of the 8 state's determination. 9 THE COURT: You have made a very clear record and 10 you have your right to appeal. 11 I feel the board looked into all of this, made 12 their recommendation, found him to have 130 points and I see 13 no reason to disturb that. 14 Thank you. 15 16 I, Vikki J. Benkel , a Senior Court Reporter in and for 17 the State of New York, do hereby certify that the foregoing 18 transcript is true and accurate to the best of my knowledge, 19 skill and ability. 20 21 22 Vikki J. Benkel 23 24 25 Vikki J. Benkel Senn," Court Reporter EFTA00205727