361-36.pdf

EXHIBIT 36 Case 9:08-cv-80736-KAM Document 361-36 Entered on FLSD Docket 02/10/2016 Page 1 of 16 Case 9:08-cv-80736-KAM Document 361-36 Entered on FLSD Docket 02/10/2016 Page 2 of 16 1 SUPREME COURT TRIAL TERM SORA HEARING NEW YORK COUNlY PART 66 2 ------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK: INDICTMENT# 3 30129/2010 4 5 AGAINST JEFFREY EPSTEIN 6 Defendant. : ------------------------------------x SORA HEARING 7 8 9 10 11 12 13 BEFORE: 111 Centre Street New York, New York 10013 January 18, 2011 HONORABLE RUTH PICKHOLZ Justice of the Supreme Court 14 A P P E A RA N C E S: 15 For the People: 16 17 18 19 20 21 22 23 24 25 For the Defense: CYRUS R. VANCE, JR., ESQ., New York County District Attorney One Hogan Place New York, New York 10013 BY: JENNIFER GAFFNEY, ESQ. Assistant District Attorney KIRKLAND & ELLI, LLP 153 East 53rd Street New York, New York 10022 BY: JAY LEFKa-JITZ, ESQ. SANDRA MUSUMECI, ESQ. Vi kki J . Benke l Senior Court Reporter Vikki J. Benke/ Senior Court Reporter page 1 Case 9:08-cv-80736-KAM Document 361-36 Entered on FLSD Docket 02/10/2016 Page 3 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SORA HEARING page 2 COURT CLERK: This is number too on the calendar, matter of Jeffrey Epstein. Your appearances please. MS. GAFFNEY: Jennifer Gaffney for the People. Good afternoon, Your Honor. MR. LEFKa.-JITZ: Jay Lefkowitz and Sandra Musumeci for Mr. Epstein. THE COURT: Mr. Epstein is not here. MR. LEFKa.-JITZ: That's correct. THE COURT: Are you waiving his appearance? MR. LEK\AOJITZ: Yes. MS. GAFFNEY: Your Honor, this case is on for a SORA hearing this afternoon. The People did receive the board's recommendation of a Level Three. However, we received the underlying information from them and also had some contact with Florida, and we don't believe that we can rely on the entire probable cause affidavit. I don ' t know i f the board sent that to you as well. THE COURT: I don't know why you cannot rely on it. MS. GAFFNEY: Because in Florida of all of the victims in that probable cause affidavit, they actually only went forward on one case. There was only an indictment for Vikki J. Benke/ Senior Court Reporter Case 9:08-cv-80736-KAM Document 361-36 Entered on FLSD Docket 02/10/2016 Page 4 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SORA HEARING page 3 one victim and that is what the defendant plead to. So it is unlike a situation where everything was indicted and then we get to sort of assess points for all of the victims, if it was part of a plea bargain. They did not actually choose to go forward on any except for the one victim. So under the board guidelines, the risk assessment interim guidelines, it actually says, you know, by way of contrast if an offender is not indicted for an offense, it is strong evidence that the offense did not occur and I don't think -- THE COURT: Do you find that if somebody is not indicted it is strong evidence that it did not occur? MS. GAFFNEY: I don't know that we can rely on it as clear and convincing evidence if the prosecutor's office never went forward on it. The prosecution said that the victims, although they spoke to the police early on, did not cooperate with them. So we don't have any follow up information. THE COURT: But the board found a Level Three. 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 Vikki J. Benke/ Senior Court Reporter Case 9:08-cv-80736-KAM Document 361-36 Entered on FLSD Docket 02/10/2016 Page 5 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SORA HEARING page 4 year old, he was an adult obviously, he was a Marine, a 17 year old came up to him and one thing lead to another and he had sex with her and the People would not agree to a dON11Ward 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 argument like this. MS. GAFFNEY: I agree with Your Honor, it is incredibly unusual for us to make a downward argument. But the problem is the one thing that we have from the board is it seems to be in contradiction to their own guidelines which if something was not indicted, you are not supposed to rely on it. THE COURT: They obviously took that into consideration. MS. GAFFNEY: And I tried to reach --I reached the authorities in Florida to try to see if they had all the interview notes or other things that we can then subsequently rely on that might be considered clear and convincing evidence, if they had interviewed these women on their own, and they never did. No one was cooperative and they did not go forward on any of the cases and none of them Vikki J. Benke/ Senior Court Reporter Case 9:08-cv-80736-KAM Document 361-36 Entered on FLSD Docket 02/10/2016 Page 6 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SORA HEARING page 5 were indicted. So I don't know. THE COURT: And you spoke to the prosecutor? MS. GAFFNEY: The actual prosecutor left the office. I spoke to the prosecutor that took over the case. THE COURT: Maybe you can find the prosecutor that left the office. You have done more in other cases looking into it. I have never seen the prosecutor's office do this. I have to tell you, I am shocked. MS. GAFFNEY: Right, but I spoke to the prosecutor that took over the case and they don't have anything, any affidavits, any statements, any notes. THE COURT: Why don't you speak to the prosecutor that did do the case, I am sure you could find that prosecutor. MS. GAFFNEY: I can find her, but based upon what the other prosecutor said, they did not speak to that prosecutor either. THE COURT: You did not speak to the prosecutor yourself, you did not speak to them, that is hearsay. You did not speak to the prosecutor that handled the case. MS. GAFFNEY: That's right. THE COURT: I don't think you did much of an investigation here. MS. GAFFNEY: I mean I called the prosecutor. Vikki J. Benke/ Senior Court Reporter Case 9:08-cv-80736-KAM Document 361-36 Entered on FLSD Docket 02/10/2016 Page 7 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SORA HEARING Even though the first prosecutor left, presumably the prosecutor's office has the file. page 6 THE COURT: I would still call the prosecutor. MS. GAFFNEY: Anything from these women they would have forwarded it to us. THE COURT: I don't knOIN that, I think you have to speak to the prosecutor. But be that as it may, I hear your argument. Anything else? MS. GAFFNEY: I mean that is why I don't think we can, I don't think we are entitled to rely on this because they did not go forward. THE COURT: The board made a recommendation. MS. GAFNEY: Correct . MS. MUSUMECI: May I speak, Your Honor? THE COURT: Yes . MS. MUSUMECI: Good afternoon. I would like to bring a few additional points to Your Honor's attention that don't come across in the board recommendation. The first is that Mr. Epstein is not a resident of New York, unlike most of these out of state, he has not changed his address and moved to New York, he maintains a vacation home in New York. His primary residence is the U.S. Virgin Islands. Vikki J. Benke! Senior Court Rep