EFTA00205195.pdf

Qui Tam Cass Action Personal hooey Wrongful Death Commercial -itigatice PATH TOJ U ST ICE COM Vikki Benkel Farmer, Jaffe, Weissing, Edwards, Fistos Et Lehrman, P.L. September 13, 2011 RE: PEOPLE vs. JEFFREY EPSTEIN COURT DOCKET/INDEX NUMBER: 30/29/10 DATE OF MINUTES: JAN. 18, 2011— SURA HEARING Dear Ms. Benkel: Enclosed please find our check #3020. in the amount of $75.00, representing pre-payment for the above referenced transcript. Please forward the copy of the hearing transcript to the address below at your earliest convenience. Very truly yours, FARMER. JAFFE, WEISSING, EDW DS FISTOS & LEHRMAN, PL ri ey J. EncAosure dwaids 425 North Andrews Avenue, Suite 2, Fort Lauderdale, Florida 33301 954.524.2820 office 954.524.2822 fax EFTA00205195 SORA HEARING page 1 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 SUPREME COURT NEW YORK COUNTY TRIAL TERM PART 66 x THE PEOPLE OF THE STATE OF NEW YORK: INDICTMENT # : 30129/2010 • AGAINST JEFFREY EPSTEIN Defendant. BEFORE: • • • • .x SORA HEARING 111 Centre Street New York, New York 10013 January 18, 2011 HONORABLE Justice...eme Court APPEARANCES: For the People: 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 LEFKOWITZ, ESQ. SANDRA MUSUMECI, ESQ. Vikki J. Benkel Senior Court Reporter Vikki J. Benkel Sensor Court Reporter EFTA00205196 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 two on the calendar, matter of Jeffrey Epstein. Your appearances please. MS. GAFFNEY: Jennifer Gaffney for the People. Good afternoon, Your Honor. MR. LEFKOWITZ: Jay Lefkowitz and Sandra Musumeci for Mr. Epstein. THE COURT: Mr. Epstein is not here. MR. LEFKOWITZ: That's correct. THE COURT: Are you waiving his appearance? MR. LEINOWITZ: 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 if 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 Vilthi J. Rothe! Senior Court Reporter EFTA00205197 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 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. page 3 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. Benkel Senior Court Reporter EFTA00205198 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 MS 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 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 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 VikkiJ. Benkel Senior Court Reporter EFTA00205199 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 ✓. Benkel Sensor Court Reporter EFTA00205200 SORA HEARING page 6 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 Even though the first prosecutor left, presumably the prosecutor's office has the file. 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 know 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. Vial J. Benikei Senior Court Reporter EFTA00205201 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 7 He is registered in the U.S. Virgin Islands, he has been since his release from jail. He notifies the Virgin Island authorities every time he leaves that jurisdiction. Virgin Island authorities rated him at the lowest level of registration. He also registered in Florida, which is the state of this particular offense, and the only reason that this conviction is even before Your Honor. The offense for which he was convicted is not a registrable offense in New York. He is only registrable here arguably because based on the provision of SORA that says if a crime is registrable in the state of conviction, then it is registrable here in New York. And the Florida authorities that considered that rated him at the lowest level of their SORA statute. He additionally has a vacation home in New Mexico and is registered in New Mexico. The New Mexican authorities when they considered his offenses, determined he need not register at all. Nevertheless, he has voluntarily registered with New Mexico and maintains that registration. Additionally, because of his possession of a vacation home in New York, he has been voluntarily registered with New York SOMU, the Sex Offender Monitoring Unit since May of this year. He notifies them whenever he comes to travel to New York. He never comes to New York for Vikki J. Benkel Senior Court Reporter EFTA00205202 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 8 more than seven days or at least he has not since he has been registered. He has no intention to ever be here for longer than a period of ten days. Like I said, he does notify the authorities when he is here. He fully understands the reason for voluntary registration, he wants to be compliant with the Federal SORA law which requires wherever you own a property to register. To require Mr. Epstein to register as a Level Three offender in New York would actually require him to come to New York more than he does normally, it would require him to come every 90 days and renew his registration. He is very diligent in registering with New York authorities. All of the other jurisdictions that have considered his case have determined that he either not register at all or register at the lowest level, and he has been more than compliant with all of those requirements. Your Honor, we would join in the prosecutor's application. THE COURT: I am sure you would. MS. MUSUMECI: By way of background, we have been in contact with the prosecutor's office on this matter since I believe certainly since Mr. Epstein got his notification, which I believe was in August. We have met with the Vikki J. Berke! Senior Court Reporter EFTA00205203 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 prosecutor and provided numerous materials for the prosecutor to consider. We have included in that a deposition from the detective who headed this investigation who acknowledged in a sworn deposition that the lead prosecutor who originally had the case, whose name I cannot pronounce, Lanna Belohlavek, I apologize for the mispronunciation, said to the detective after her investigation, there are no real victims here. All of the alleged conduct that is cited in the board's write up was commercial conduct. All of the alleged conduct the women went voluntarily, there are no allegations of force certainly none. THE COURT: 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. MS. MUSUMECI: It is our understanding that the prosecutor in Florida conducted a full investigation, as full as she was able with the cooperation afforded by these complainants, and determined that the only case that she could present to the grand jury was this indictment for a non registrable offense then -- THE COURT: But it is registrable here. I don't know what you mean non registrable offense. MS. MUSUMECI: Let me explain, Your Honor. Vikki J. Benkel Senior Court Reporter page 9 EFTA00205204 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 SORAHEARINIG page 10 Mr. Epstein plead to two charges, one was an indictment which is an offense that is not registrable, it is a Florida indictment for -- THE COURT: Then why does he have to register here? MS. MUSUMECI: It was a second offense that he plead to -- THE COURT: That is registrable. MS. MUSUMECI: That is registrable. That offense was by information and that is the only registrable offense, that is what the DA's office is considering in doing their scoring. The indictment which was the only case that the prosecutor even prosecuted through grand jury is not even a registrable offense. THE COURT: He plead guilty to a registrable offense. MS. MUSUMECI: Yes. THE COURT: What did he plead guilty to? MS. GAFFNEY: He plead guilty to the procuring a person under 18 for prostitution. THE COURT: Procuring a person under 18 for prostitution. MS. GAFFNEY: Right. THE COURT: Haw old was she? Vikki J. Benkel Senior Court Reporter EFTA00205205 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 11 MS. GAFFNEY: It appears the first time they met she was either 16 or 17, then for the remainder of their relationship she was probably 17. THE COURT: How long MS their relationship? MS. GAFFNEY: She met, she gave him approximately 15 massages, including with sexual contact, and ultimately when she is 17 had intercourse with him. THE COURT: She is a child. MS. MUSUMECI: Your Honor, I would note that under SORA it is clear that prostitution offenses are only registrable when in fact by clear and convincing evidence the women or victim is 17, is under 17. THE COURT: Well, she met him at 16, he procured her at 16 from what I read. MS. MUSUMECI: There is evidence we challenged. THE COURT: He plead guilty to that, didn't he? MS. MUSUMECI: He plead guilty to under 18, which is the law in Florida, which is a different standard than what the law is in New York. And there is no evidence, there is no clear and convincing evidence as to her specific age at the time of the specific conduct. THE COURT: Well, the DA just told me she was most likely 17, she just said it on the record. MS. MUSUMECI: Your Honor, we agree that the evidence is that she was 17 on the one occasion she had Vikki J. Benkei Senior Court Reporter EFTA00205206 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 12 consensual intercourse with him and 17 is not registrable or criminal under New York law. And the prostitution aspect of having intercourse with a 17 year old is not registrable conduct. THE COURT: Ay does he have to register here? MS. GAFFNEY: Because it is a register able offense in Florida, New York State board of examiners -- THE COURT: Recognizes it. MS. GAFFNEY: Recognizes it, yes. THE COURT: I have had many cases like that where it was not registrable here but it was in the state where the person came from and New York recognized that. MS. MUSUMECI: Your Honor, we are not saying that he should not register. Mr. Epstein has already registered and recognizes his duty to register. THE COURT: I am glad of that, very glad of that. I am sorry he may have to come here every 90 days. He can give up his New York home if he does not want to come every 90 days. Anything else? I rely on the board. MS. MUSUMECI: Your Honor, we would reserve our right to appeal Your Honor's ruling. THE COURT: Of course, do so. MS. GAFFNEY: For the record, Your Honor, he is Vikki r. Benkel Senior Court Reporter EFTA00205207 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 13 going to be deemed a Level Three sex offender with no designation, correct? THE COURT: Correct. MS. MUSUMECI: For purposes of the appeal I believe that Your Honor -- THE COURT: Give me the board's scoring. The board has scored use of violence the least, 10. Sexual contact with victim, 25. I agree. Number of victims, three or more. He only plead guilty to one, but apparently there were more than one and I think the People concede that although they say it was not reliable. Duration of offense, conduct with victim, continuing course of sexual misconduct, the People have told me it was continuing for 20 points. Age of victim 11 through 16, he got 20 points for that, and she was 16 at the time. Other victim characteristics, there was no mental disable or helplessness. I agree. Relationship with victim stranger, 20 points. Age at first act of sexual misconduct, 20 or less. They scored him zero on that. Number and nature of prior crimes, no history, they scored him five on that. Vikki J. Benkel Senior Court Reporter EFTA00205208 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 14 Recency of prior offense less than three years, they gave him zero. Drug or alcohol abuse history, they gave him zero. Acceptance of responsibility, they gave him zero. Conduct while confined, they gave him zero. And supervision, they gave him zero. Living employment situation, zero. They gave him 130 points, which is the highest level, and I agree with that. MR. LEFKOdITZ: If I could be heard for one moment. It appears that the state board made its determination based on access to a police report in Florida. The prosecutor, the lead prosecutor, the lead sex crimes prosecutor in Palm Beach made a determination that the complainants and the police report itself was not credible and decided not to prosecute on the basis of all of that. In addition, there has been through the course of the last few years some civil litigation, as you might imagine, involving these matters and we now have sworn testimony in evidence from the complainants themselves disclaiming much of what appears in the police report. So, Your Honor, we would submit and this is not to make light in any way of the conduct what Mr. Epstein did or Vikki J. Menke! Senior Court Reporter EFTA00205209 SORA HEARING page 15 (-' 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 what Mr. Epstein plead guilty to, but with respect to everything and that is why Mr. Epstein voluntarily registered in New York even though there is a question about whether he has any obligation just as a jurisdictional matter, but Your Honor, with respect to the appropriate level for him to register, we would submit Your Honor that the evidence simply does not support the foundation of the state's determination. THE COURT: You have made a very clear record and you have your right to appeal. I feel the board looked into all of this, made their recommendation, found him to have 130 points and I see no reason to disturb that. Thank you. I, Vikki J. Benkel, a Senior Court Reporter in and for the State of New York, do hereby certify that the foregoing transcript is true and accurate to the best of my knowledge, skill and ability. Vikki J. Benkel Vikki J. Benkel Senior Court Reporter EFTA00205210