5/22/2018 Letter to Judge Dwyer

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M I C H A E L G OW

N IAL L M A C G IOLLABHU -A D M ITTED A S SO L IC ITO R

REPUBLIC O F IR ELA N D

Hon. Mark DwyerKings County Supreme Court , Criminal Term320 Jay StreetBrooklyn, NY 11201

4 2 5 P ARK AVEN UE 2 6 T FL O O RNEW YOR K NEW YOR K 10 0 2 2

TELEPH ONE 2 12 J 75 1 164 0 FAX 12 121 872 1 7 7 7www mgdowdlaw.com

July 12014

Re: People v. Baruch LebovitsInd No. 11393/2008

Dear Justice Dwyer:I write to you in connection with sentencing in the above matter, presently

scheduled to take place on July 9, 2014 . In particular, I write to you on behalfof, one of the many victims of Baruch Lebovits.I-laving read the plea minutes from May 162014 , I note that Lebovits was

promised a sentence of two years by the Court , with the proviso that if for any reason onsentencing date I can t do that, I would just give [the] plea back and it would be like thisnever happened. I further note that the basis of the promised sentence was the Court sinquiry into prison sentences for people convicted of E-felony sex crimes over the last halfdozen years, and the information it received that the mean sentence after a guilty plea _has been about two years.

Granted, Lebovits has pled guilty to E-felony sex crimes. However, as I haveset forth in my submission to the Department of Probation (a copy ofwhich is enclosedherewith), his plea represents only a small part of his long history as a serial rapist and abuserof children in my client s community. also does not account for the other complainant onthis Indictment, whose cooperation with the prosecution ended by means of intimidation andbriber y carr ied out on behalfof Lebovits. Nor does it account for the complainant in therelated Indictment, No. 2600/2008 - namely, my client - whose case was surreptitiouslydismissed as a result of fabricat ed allegations against his father and wholesale corruption ofthe criminal justice process. These last two matters are presently the subject of separateinvestigations by the District Attorney.

As an aside, I also note from the plea minute s that counsel for Lebovitscontinues to peddle the now thoroughly discredited nonsense that my clients father , Sam

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Hon. Mark DwyerKings County Supreme Court, Criminal TermJuly 1, 2014Page 2 of3

Kellner, engaged in an extortion plot. He docs so despite dismissal of the Kellner casebecause his client s son, Meyer Lebovits, was found to have provided perju red Grand Jurytestimony and because the other witness against Kellner, (the othercomplainant on the present Indictment), was found to have been intimidated and bribed intoending his cooperation with the prosecution and later falsely implicating Kellner. Onceagain, there is supposed to be a smoking gun tape recording. At last count, this is the thirdsuch tape. The first smoking gun tape, once fully translated from Yiddish, in fact exposedMeyer Lebovits s perjury. The second tape, announced dramatically on March 7, 2014,when counsel for Lebovits made an unsuccessful attempt to stop dismissal of the Kellnercase and promised to publish its contents, has not been heard of since. (Incidentally, thatsame day, counsel for Lebovits, in front of various reporters - http://www.nyt imes.com/2014/03/ II / nyregionlafter-seeing-his-fami ly-crumble-vindicated-whistle-blower-has-littleto-smile-about.html - threatened that if I continued my advocacy on behalf of the Kellnerfamily, he would bring forth yet another smo king gun tape in which I supposedly talkedabout making a witness disappear, only to sheepishly concede in a conversation with Mr.Dowd of my office a few days later, after I told him to go ahead and publish it, that he madeit up.) Regarding the most recent smoking gun tape - i.e . a fake documentary onRubinstein s life for which he was flown by Lebovits to Florida and plied with drugs counsel for Lebovits made reference in court to Rubinstein s repetition of the falseallegations he heard concerning Kellner. He conveniently omits Rubinstein s response tothese allegations: When asked whether Kellner ever tried to shut him up, or offe r himmoney to drop the case, Rubinstein responds, No ... [Kellner] always told me, [Rubinstein],go to court , you re going to tell the truth, tell the truth. Kellner , he says, let me go thetruthful way. I proceeded truthfully and honestly. At this stage, it is less a matter of what issmoking, and more a matter of what is being smoked in order to believe that anyonecontinues to take seriously what is tired and empty bravado from a defense terrilied to go totrial even with a successfully paid-offcomplainant).

Return ing to the matter at hand, it is well establ ished that , in reaching asentencing determination, the court may consider not only prior offenses for which thedefendant was convicted, but even of nses for which he had not been convicted People v.Whitehead, 46 A.D.3d 715, 716, 848 N.Y.S.2d 657 (2nd Dept. 2007) (quoting People v.Khan, 146 A.D.2d 806, 807, 537 N.Y.S.2d 284 (2nd Dept. 1989); see also People v.Gonzalez, 242 A.D.2d 306, 307, 661 N.Y.S.2d 50 (2nd Dept. 2009) (citations omitted) ( It[is] within the court s discretion to consider the defendant s prior criminal history, includingcrimes lor which he has never been tried or convicted, as long as the information regardingsuch crimes was reliable and accurate.) ,

Th is Court may of course conclude that the information regarding Lebovits sother criminal activity is not sufficiently reliable and accurate to affect the sentence itultimately imposes. However, the District Attorney has a duty to place this informationbefore the Court and the Court, I respectfully submit, has a duty to consider it in advance ofsentence.

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Hon. Mark DwyerKings County Supreme Court Criminal TermJuly 1 2014Page 3 of

This case does not merely implicate the interests of Lebovits and theremaining complainant Rubinstein. timplicates the interests of society. Society has aninterest in making sure that the sentence imposed on a serial predator and rapist of childrenfollows due consideration of all relevant circumstances. Society has a further interest inmaking sure that such a person is not allowed to abu se another child. tsho uld be borne inmind that the previous pre-sentence report in this case documented Lebovits s gamblingaddiction - in other words his lac k of impulse control. Releasing him back into thecommunity in a few sho rt months flush with his evasion of j ustice carrie s grave risks for thechildren of my client s community. Their futures are not to be gambled with.

Ultimatel y I ask only for the Co urt to ensure that all relevant information isplaced before it; once considered I submit it will find that the currentl y promi sed sentence iswoefully inadequate. The Court pointed out at the conclusion of Lebovitss plea that thiscase is one of substantial publ ic interest. That justice be done and seen to be done is ofmomentous importance in my client s community. If Baruch Lebovits is allowed to evadej ustice other pedophi les in the community and their enablers will be emboldened moreinnocent chi ldren will be raped and abused and they and their famili es will be eve n morescared than before to come forw ard and cooperate with law enforcement. If my client andthe other children that have been abu sed by Baruch Lebovit s came from a di fferentcommunity there is no doubt that he would be spending the rest of this life in prison .However coming from Borough Park and not Park Slope does not make th em the chi ldren ofa lesser God. tdoes not make them less deserving of j ustice.

I thank the Court for its attention to these matters.Respectfully

g ~ J ? Y } d /Niall M a c 6 J

Encl.cc: ADA Anna-Sigga Nicolazzi Esq.

Arthur Aidala Esq.