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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS: CRIMINAL TERM, PART 26
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THE PEOPLE OF THE STATE OF NEW YORK,
Ind. No.
11393 of 2008
-against-
SENTENCE
BARUCH LEBOVITS,
Defendant.
---------------------------------------x
July 9, 2014
Kings Supreme Court
320 Jay Street
Brooklyn, New York 11201
B E FOR E: THE HONORABLE MARK R. DWYER,
Justice of the Supreme Court
A P PEA RAN C E S
For the People:
KENNETH P. THOMPSON, ESQ.
District Attorney - Kings County
350 Jay Street
Brooklyn, New York 11201
BY: MISS GREGORY, ESQ.
ANTHEA BRUFFEE, ESQ.,
ANNA NICOLAZZI, ESQ.,
Assistant District Attorneys
For the Defendant:
ARTHUR AIDALA, ESQ.
CELENA EDWARDS, RPR
Senior Court Reporter
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THE CLERK: No. 6 on the sentence calendar,
Indictment 11393 of 2008, Baruch Lebovits.
The defendant is present and before the Court.
Give your appearances, please.
MS. GREGORY: Miss Gregory for the Office of the
District Attorney. Good morning, your Honor.
MS. BRUFFEE: Anthea Bruffee for the Office of the
District Attorney.
MS. NICOLAZZI: Anna Nicolazzi, for the People.
MR. AIDALA: Arthur Aidala for Mr. Lebovits.
THE COURT: I have to say, I had this case called
first because I usually only have this many people in
my courtroom when I am picking a jury. So I know why
most of you are here.
I have to begin with two applications, one from
the Post and from, and one from the Daily News.
I think both are for still photography, although
it's not specified in one of the two. I tend to defer
to the desires of the parties.
I know in this case there have been lots and lots
of photos and I know that there will be photos taken
outside the courtroom, if they are not taken inside the
courtroom. The matters in this particular, defense is
not interested in having the still photos in the
courtroom today.
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And I see no particular reason why there should
be. So with all due respect, I will not sign the
applications for still photos here. I think our first
order of business is simply the sentencing.
Have both sides seen the pre-sentence report?
MS. GREGORY: Yes, we have.
MR. AIDALA: Yes, your Honor.
THE COURT: And are there any factual difficulties
with it?
MR. AIDALA: Your Honor, I am continuing to peruse
right now we could maybe --
THE COURT: I will give you what you need. Take
your time.
MR. AIDALA: Okay. I don't see any issues.
THE COURT: People agree?
MS. GREGORY: Yes, your Honor.
MR. AIDALA: Excuse me, your Honor. Just one.
Everything is fine, your Honor.
THE COURT: Very good. I will then hear from the
People as to sentence.
MS. GREGORY: Thank you, your Honor.
At this time the People would like to acknowledge
the ongoing participation of the victim and his family
during these past six years. It has been a long time
and much has happened in the courtroom as well as ..,.......--.."
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outside of the courtroom. And the D.A. 's office
through myself, would like to extend our thanks to
their commitment to this case.
Today the People would like to rely on the
extensive record that has been made over those six
years and also would ask that the Court hear from the
victim in the case, Sruly Rubinstein, as well as his
father Abraham Rubenstein.
THE COURT: And I will certainly hear from both.
THE WITNESS: Good morning, your Honor. My name
is Yakov Rubinstein, Y-A-K-O-V, R-U-B-I-N-S-T-E-I-N.
I want to point out that Nico Rothenberg (ph.) in
the back, is bullying me on the hotline everyday. If
you don't believe me, you could call his hotline and
listen to it. He is telling I don't have no teeth.
THE COURT: Let me ask you to get directly to this
case.
THE WITNESS: It's important. It's the whole
case. He is, the whole time, and everybody is
listening to it. And he is saying I don't have no
teeth and all kinds of bad stuff about me. I will
finish with him next. I am moving my attention to
Baruch Lebovits.
The pain you caused my family and, and you wanted
to have it your way. Unfortunately I got Pareses. I
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can't go to the bathroom publically for the past two to
three years already because of this thing.
And he still won't apologize to me in person. He
never apologize to me. That's it. Thank you for
letting me speak.
THE COURT: I appreciate it.
THE WITNESS: Good morning, your Honor.
Honorable Judge Mark Dwyer. My name is Abraham
Rubinstein. I would like to thank the Honorable Judge
Mark Dwyer for giving me the opportunity to speak at
today's sentencing. And I want him -- I would like to
thank him for handling the case with great sensitivity.
We observe today, not a victory for Sruly, but a
celebration of the truth.
And Joe Isennede said at the bench, for every
reason to say a lie, it's a better reason to tell the
truth.
King David said in Psalm 111, verse 1: I want to
thank God with my whole heart in the assembly of the
upright.
I want to thank God for bringing the case to fina
conclusion.
Ralph Waldo Emerson said, for every sunset brings
a promise of the new dawn.
I want to thank the D.A, Mr. Kenneth Thompson for
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6
his persistence and keeping his promise of seeking
justice for Sruly.
I want to thank ADA Miss Gregory and Anthony for
prosecuting the case, and always be available for
Sruly.
I have to say a special thanks for attorney
Michael Ross who took on the case and did not want to
be paid for his work. May God bless him and repay him.
I want to thank my wife and children for the love
and support in these difficult times.
We all have been ex-communicated for the past six
years from some of the Chasidic communities, and we
were considered the, considered "Mosrim" which means
traitors to the community for approaching the D.A. withl
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this case. In some cases of Jewish law, one has to
first approach a Rabbi if he has a problem with another
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jew. However, in the case of rape or molestation the I
chief justice 0 the orthodox Jerusalem Court, Rabbi
Sternbuch and several other orthodox rabbis ruled that
in a case of Rodef, which applies to this case, it is
an obligation to go to the authorities, even if it
means jail time.
So I want to tell a story was will shed some Ii
on the double standards that exist, unfortunately in
the Chasidic community and what we are up against.
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The story took place in Eastern Europe before the
second World War. The Grand Rabbi of a town had only
one daughter. He was looking for a groom for his only
daughter, who had to be a great scholar and come from
Rabbinical dynasty. He found a young man who matched
these qualifications and they got married.
After the Grand Rabbi passed away, the young gr
took on the leadership of the community and the
Rabbinical College. And he was loved by all.
When the war broke out, he escaped Nazi Europe
immigrated to Israel with his family.
Soon afterwards, after that his wife passed away
and he remarried and moved to South America and became
a Grand Rabbi. And he sent his children to a promine
Rabbinical seminary in Ohio.
One of his sons turned on his father, the Grand
Rabbi, and wanted to take away his father's
inheritance. Since the father's properties were in
Israel, the son called him to secular court in Israel.
He did not go to Rabbinical court, as he should have
this case. So his father approached the great Grand
Rabbi, Joel Teitelbaum of Satmar and asked him to talk
to his son. When his son came in to see the Rabbi
Teitelbaum, Rabbi Teitelbaum turned his face away from
Our sages say that one should not look at the face of
i
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an evil man and asked the son, who gave permission to
take his father to a secular court.
So this son commit a Messira, by going to the
authorities. According to Rabbi Teitelbaum he did.
This son became a well-known Rabbi who now tells
his followers not to be Mosrim, not to go to
authorities. So you can see the double standard in our
community and hypocrisy of the some of the rabbis.
Sruly, when I look into your eyes and place my
heart near your heart, I feel that we are one soul
like. As Aristotle said, love is composed in a single
soul inhabiting two bodies.
Sruly, I want to tell you how much I respect you.
For the bravery and the-self sacrifice for going
forward with the case despite harassment you endured
from community. You did it to save other kids in the
community. You were like Pincus, the Zealot whom God
blessed with the covenant of peace and may God bless
you and give you peace as well.
Martin Luther King Jr. said, "justice is temporary
thing, that must at least come to an end. But
conscience is eternal and will never die".
Baruch Mordechai Lebovits, as you are going away
for a while, I would like to ask you to reflect during
that time on how you destroyed an innocent life and you
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have been able to walk the streets while Sruly sits
alone at home. You will be able to smozing with your
friends while Sruly is cut off from his friends.
Do you think your soul is purer than his? Do you
think your blood is more redder than his?
Maimonides wrote in the book of "Yad Chazaka" in
Chapter 2 of repentance verse 9, if one steals and
returns the stolen object, he must still ask
forgiveness or else his sin is not forgiven. Baruch
Mordechai, during all the time, all this time you still
never asked the simple three words from Sruly, I am
sorry.
Thank you.
THE COURT: Thank you.
Anything further from the People.
MS. GREGORY: Just two points, your Honor. The
People would like to turn back to a letter that we sent
the Court on June 6 of 2014. There was a discussion
about early release for the defendant. And we would
just note that the communications that we had with the
parole board at Riker's Island has indicated that if
the Court would note on the sentence documents that th
defendant has waived this early release, that that
would be preferable. And additionally, the People
would ask that the Court would extend the final Order
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of Protection in this matter.
THE COURT: And I will certainly sign an Order of
Protection.
Let me hear from you, Mr. Aidala.
MR. AIDALA: Your Honor, I am going to rely on the
plea of the Court.
Regarding the Order of Protection, obviously, that
will take place regarding the waiver of early release.
r am going to ask the Court to let the Department of
Corrections handle this matter the way they handle
every other case.
They do their assessments on thousands of people
on a regular basis and r would ask them to do that in
the same exact way. r would ask Mr. Lebovits be
treated like every other criminal.
THE COURT: Although I may say, you were afraid
that if r gave a two to six year sentence, your client
would not be treated by the State Corrections system
the same way as others, and it would be less a two-year
sentence and more a six-year sentence.
MR. AIDALA: That fear was based on fact.
THE COURT: Yes, and I understand.
MR. AIDALA: Regarding my client's religious
beliefs, at the end of these proceedings, your Honor, I
would like to just ask the Court -- you bend down this
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1
road before, give me so ordered letter that basically
allows him to keep this yamaka, to keep his beard.
THE COURT: I will certainly write the letter. I
will sign it. I have been told in the past by at least
State Corrections officials that they will honor such
letters. I've also been told sometimes they don't. I
don't know about city Corrections. I can't imagine
there will be a problem there and I assume your client
didn't have a problem last time, but I will certainly
sign whatever letters.
MR. AIDALA: They definitely honor, your Honor.
He didn't have a problem last time. As I said, Judge
Dimango did write the letter and we did fax it over.
And I also have a letter for the Court that I could
give after. It has to do with his diabetes and the
type of shoes that he has to wear. I did call
Corrections. As long as they don't have laces on them,
it shouldn't be a problem. But if the Court indicated.
THE COURT: Stick that in the letter as well.
MR. AIDALA: The only thing I have to say is than
you very much, your Honor, for your patience and your
judgment in this rather difficult complicated matter.
We rely on the previous plea disposition with the
Court.
THE COURT: And, sir, is there anything you would
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like to say at this time?
THE WITNESS: 'I like to say, thank you, your
Honor.
THE COURT: And you are certainly welcome.
We still will have the SORA determination to deal
with afterwards, but I will proceed to sentencing at
this point.
I know this is a controversial case. I set out on
the record at the time of the plea my reasoning for
thinking that a two-year term was appropriate.
The defendant has already served some of that two
year term. He will have to serve more and I am doing
it with a waiver of early relief -- release, I am
sorry.
I appreciate the comments from the People's
proponent. I frankly am from a different part of the
world. I note there is a community here that is badly
split. I know that we are talking about rabbinical
courts and secular courts and such and such. I only
know one kind of court, we are Americans and this
American court is going to treat everybody the same.
r appreciate the fact that victims are willing to
come forward. I urge all victims to do that,
regardless of any traditions, to the contrary.
At this point, I will impose a two-year prison
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term, effectively one year on each of two counts to be
consecutive. The remaining counts one-year concurrent.
The mandatory fees and surcharges are $250. I
wish you good luck, sir.
And let me now turn to the SORA determination in
this matter. People first.
MS. BRUFFEE: Thank you, your Honor.
The Board of Examiner's has presumptively placed
the defendant in the 113 sex offender category
sorry, level two, misspoke, level two category. And
the People have a burden by clear and convincing
evidence to prove each of these, which we will do
relying on the victims's trial testimony, Grand Jury
testimony, and also the pre-sentence report, which we
have just received. And also the sex offender
registration and risk assessment guidelines and
commentary.
So the board has assessed the defendant 25 points
for sexual conduct with the victim, oral sex, and that
was proved by the plea minutes at page 25. And the
trial minutes at page 57 and 61. And also 63 to 66.
The second risk factor they assessed him 20 points for
duration of offense conduct, continuing conduct. That
is proved by the testimony at trial that there were
eight incidents between over the course of ten months,
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between May 2nd, 2004 and February 22nd, 2005. And
that was made out by the plea minutes at 25 to 26. The
Grand Jury minutes at 27 to 31, and the trial minutes
38. So that's those two risk factors.
The third risk factor that the defense is
challenging is risk factor seven, the relationship
between the offender and the victim. However, if your
Honor looks at the guidelines, it's not just whether
the offender crime was directed at a stranger and we
could see that the victim and defendant were not
strangers, but you could also reach those 20 points if
the offender crime was directed at a person with whom a
relationship was promoted with the primary purpose of
victimization and the defendants MO, if you will, was
picking up -- repeatedly picking up the victim, the
16-year-old victim who did not have a driver's license
and permitting him to drive and the victim's testimony
was that this was one of the reasons that he kept
getting into the car, because he liked to drive. And
this was a kind of grooming, MO, if you will, which
promoted the relationship for the purpose of
victimization and the victimization occurred in the
car. That was made out in the trial minutes at 59 to
62 and also in the Grand Jury minutes at 25 to 26 and
actually the last page of the pre-sentence report
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states that the defendant would pick him up in his car.
So those 20 points are warranted.
Also risk factor five, the age of the victim. The
victim was 16 and that was made out by the Grand Jury
minutes at 25, the trial minutes of 38 and the plea
minutes at 25. So that's an additional 20 points
there.
The last points, the 15 points, the other thing
that the defense is challenging is supervision. Now
this is a strict liability factor. The defendant gets
15 points if he will be released without official
supervision, and the defendant is going to be released
without supervision.
THE COURT: Much to the People's chagrin because
you would have preferred two to six.
MS. BRUFFEE: Now, with regard to the defense's
request to a downward departure to risk level 1, in
order for him to be entitled to such a downward
departure, he would have to show by a preponderance of
the evidence that there are certain factors and he set
forth factors in his letters that are not taken into
consideration in the risk assessment instrument.
And the majority of the factors that he is
suggesting warranted downward departures are taken into
consideration. The board gave no points, for example,
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with regard to risk factor nine, where the defendant
has other sexual crimes.
He misstates in his her that this is the
defendant's first sex crime. The People's position
that it isn't. We didn't score for that because he
doesn't have a conviction and the guidelines require
conviction.
THE COURT: And I will say that as to the
sentencing decision as well, I seen submissions which
urge me to increase the sentence because of other sex
crimes, I am sentencing this defendant for what he's
been convicted of and he's been scored here for what he
has been convicted of.
MS. BRUFFEE: And we are not asking for anything
else.
With regard to his sorry, oh, he is suggesting
also that the aid, that he should be scored lower
because he didn't use force. That also have been taken
into consideration, risk factor one. Uses would have
given him points for use of violence, he got zero
points. So that's taken into consideration.
In fact, he accepted responsibility for his crime
and pled guilty, is also taken into consideration.
Risk factor 12 assessed him zero points for that.
As far as his age at the time of his crimes, if he
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was 80 or 90, the People might agree with that, but on
his release, he will only be 63 and he committed these
crimes when he was 53 and 54. 63 these days is not an
advance age.
THE COURT: Thank you.
MS. BRUFFEE: And for all of those reasons, the
People would urge this Court not to grant a downward
departure, but to assess the defendant what the, what
the board has assessed him at level three, and they
also recommended no downward departure.
MS. BRUFFEE: Two, I am sorry.
THE COURT: You got three on your mind.
MS. BRUFFEE: Freudian misstatement. Level two,
your Honor.
THE COURT: Yes.
MR. AIDALA: Your Honor, I don't think I am going
to address the age issue.
THE COURT: Thank you.
MR. AIDALA: Regarding the other two issues in the
relationship between the Mr. Lebovits and the
complaining witness and the post-release supervision
aspect, your Honor, we handed in a significant written
request and I note the Court is very well aware of it,
specifically paragraph 10 relates to relationship, 11
relates to the supervision. I am going to reply upon
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that at this point.
THE COURT: And I am going to, on one level, split
the baby, which is to say, which is to take on your two
contested points, I agree with you on one.
I agree with you this is not a stranger
relationship, even though the people noted it. The
defendant wooed his victim. That's the case with lots
of situations where there is under age sex.
The simple fact is, that it was a victim who was
known to defendant as family, and I don't think the
stranger points should properly be assessed.
I disagree with you, though, on the supervision
aspect. The simple fact is, that your client will not
be supervised upon release and as I say that, that's
because I have given him those definite terms that,
overall are best for him. And I think the points,
therefore, do apply. I think the total then leads me
with 80, which is simply still a presumptive level two
and I see nothing frankly about this case that is
unusual enough for me to give a downward departure.
It's -- I hate to say, a garden variety of sex offense
case, but it certainly is just a normal sex offense
case to me with no special factors either calling for
an upward or a downward departure.
So I will agree with the People that level two is
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the appropriate risk category.
Anything else for us to resolve?
MR. AIDALA: Your Honor, may I ask that his card
be marked protective custody?
THE COURT: Sure.
Sergeant can you do that?
THE COURT: And when will you get me the letter?
MR. AIDALA: I will, before your lunch break.
THE COURT: That is great.
I apologize. I said that the fees and sur charges
were $250. I forgot that even though I am giving one
year jail terms, it's still a Class E felony, and so
it's $375. There is also a mandatory $1,050 sex
offender fee.
MR. AIDALA: Thank you, your Honor.
*
* *
CERTIFIED TO BE A TRUE AND ACCURATE TRANSCRIPT OF THE
ABOVE-MENTIONED TRANSCRIPT.
CELENA EDWARDS, RPR
OFFICIAL COURT REPORTER
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