To be Argued by:

Alan M. Dershowitz
20 min
QL:ourt of tbe of

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT
Appellate Division Docket No. 2010-03777
Kings County Indictment No. 11393/08
THE PEOPLE OF THE STATE OF NEW YORK,
Respondent,
v.
BARUCH LEBOVITS,
Defendant-Appellant.
BRIEF FOR DEFENDANT-APPELLANT
BARUCH LEBOVITS
Alan M. Dershowitz
Of Counsel
Nathan Z. Dershowitz
Amy Adelson
Dershowitz, Eiger & Adelson, P.C.
220 Fifth Avenue, Suite 300
New York, NY 10001
212-889-4009
Attorneys for Defendant-Appellant
Baruch Lebovits
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT
THE PEOPLE OF THE STATE OF NEW YORK, : Appellate Division
Respondent, : Docket No. 2010-03777
: Kings County
: Indictment No. 11393/08
-against- : CERTIFICATION
: PURSUANT TO CPLR 5531
BARUCH LEBOVITS,
Defendant-Appellant.
1. The Indictment Number of the case in the court below was 11393/08.
2. The full names of the parties are the People of the State of New York
and Baruch Lebovits.
3. The action was commenced in the Supreme Court of the State of New
York, County of Kings, Criminal Term, Part 15.
4. The action was commenced by the filing of an Indictment on
December 5, 2008, in the Supreme Court of the State of New York, County of Kings.
5. This was a criminal prosecution.
6. This appeal is from a judgment of conviction of the Honorable
Patricia DiMango rendered on March 8, 2010. The defendant-appellant was
convicted of eight counts of criminal sexual act in the third degree pursuant to P.L.
130.40.2. On April 12, 2010, he was sentenced to eight terms of imprisonment on
each count, to be served concurrently, for a total sum of imprisonment of 10 2/3 to
32 years.
7. This appeal will be heard on the original record; the appendix method
is being used pursuant to 22 NY.C.R.R. 670.9(b).
Dated: August 3, 2011
New York, New York
'Nathan Z.
DERSHOWITZ, EIGER & ADELSON, P.C.
220 Fifth Avenue, Suite 300
New York, New York 10001
(212) 889-4009
Attorneys for Defendant-Appellant
Baruch Lebovits
TABLE OF CONTENTS
CERTIFICATION PURSUANT TO CPLR 5531 ......................... .
TABLE OF CONTENTS ............................................ i
TABLE OF AUTHORITIES ......................................... iv
QUESTIONS INVOLVED ........................................... 1
NATURE OF THE PROCEEDINGS ................................... 3
STATEMENT OF THE FACTS ., ..................................... 5
The Alleged Victim's Testimony ................................. 8
The RosariolBrady Violations .................................. 13
. Rabbi Ashkenazi's Testimony .................................. 18
ARGUMENT .................................................. " 21
1. THE CONVICTIONS SHOULD BE REVERSED
BECAUSE THE EVIDENCE IS LEGALLY
INSUFFICIENT AND AGAINST THE WEIGHT OF
THE EVIDENCE OR IN THE INTEREST OF JUSTICE ........ 21
A. The Convictions Should Be Reversed
Because the Evidence Was Legally
Insufficient ....................................... 22
B. The Convictions Should Be Reversed As
Against the Weight of the Evidence .................... 27
C. The Convictions Should Be Reversed In the
Interest of Justice .................................. 30
1
II. THE PEOPLE VIOLATED THEIR ROSARIO AND
BRADY OBLIGATIONS BY WITHHOLDING NOTES
OF POLICE INTERVIEWS WITH THE COMPLAINANT
UNTIL AFTER THE WITNESS TESTIFIED,
SUB S T ANTIALL Y AND IRREP ARAB L Y
PREJUDICING THE DEFENSE. RE-OPENING CROSS-
EXAMINATION DID NOT CURE THE PREJUDICE ........ 32
A. The Rosario Violation Constitutes
Reversible Error ................................... 36
B. The Brady Violation Constitutes Reversible
Error ................................ , ........... 40
III. THE PROSECUTOR EXPLOITED THE WRONGDOING
BY IMPROPERLY QUESTIONING THE SOLE
DEFENSE WITNESS, WHOM THE DEFENSE WAS
COMPELLED TO CALL BECAUSE OF THE NON-
DISCLOSURE OF THE NOTES, ABOUT STALE
ACCUSATIONS OF SEXUAL. MOLESTATION
WITHOUT SHOWING THAT SHE HAD A GOOD
FAITH BASIS FOR BELIEVING THOSE
ACCUSATIONS TO BE TRUE, AND BYIMPROPERL Y
"TESTIFYING" DURING SUMMATION THAT THE
DEFENSE WITNESS WAS AN ACCUSED CHILD
MOLESTER ........................................... 44
IV. THE SENTENCE OF 10% YEARS - EIGHT TIMES THE
SENTENCE OFFERED DURING PLEA
NEGOTIATIONS - EXCEEDS THE MAXIMUM AND
MINIMUM TERMS OF IMPRISONMENT ALLOWED
BY STATUTE AND MUST BE "DEEMED" TO BE 10-20
YEARS. THE SENTENCE CONSTITUTED AN
UNLAWFUL PENALTY IMPOSED ON DEFENDANT
FOR EXERCISING HIS CONSTITUTIONAL RIGHT TO
A JURY TRIAL AND SHOULD BE VACATED.
ALTERNATIVELY, THE SENTENCE SHOULD BE
ii
MODIFIED IN THE INTEREST OF JUSTICE ............... 53
A. The Sentence Exceeds the Statutory Maximum
and Minimum ..................................... 56
B. The Sentence Constituted An Unconstitutional
Penalty For Going to Trial ........................... 56
C. The Sentence Is Unduly Harsh and Excessive ............ 59
CONCLUSION ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 62
CERTIFICATE OF COMPLIANCE
PURSUANT TO 22 NYCRR 670.l0.3(f) .............................. .
111
TABLE OF AUTHORITIES
Alabama v. Smith,
490 U.S. 794 (1989) ............................................ 56,59
Brandes Meat Corp. y. Cromer,
146 A.D.2d 666 (2d Dept. 1989) ....................................... 5
Berger v. United States,
295 U.S. 78 (1935) ................................................... 52
Bordenkircher v. Hayes,
434 U.S. 357 (1978) ............................................... 57
Brady v. Maryland,
373 U.S. 83 (1963) ............................................ passIm
Giglio v. United States,
405 U.S. 150 (1972) ............................................... 41
In re Cento Properties Co.,
71 A.D.3d 1015 (2d Dept. 2010) ....................................... 5
In re Pi,
2011 WL 2624000 (2d Dept. 2011) .................................... 5
O'Neill v. Board of Zoning Appeals,
225 A.D.2d 782 (2d Dept. 1996) ....................................... 5
People v. Antonetty,
268 A.D.2d 254 (1st Dept.),
Iv. denied, 94 N.Y.2d 945 (2000) ..................................... 49
People v. Bleakley,
69 N.Y.2d 490 (1987) ........................................... 21,22
People v. Brown,
70 A.D.2d 505 (1st Dept. 1979) ...................................... 58
iv
People v. Cahill,
2 N.Y.3d 14 (2003) ...... 0 .... 0 .................................... 27
People v. Carthens,
182 AD.2d 460 (1st Dept. 1992) ......... 0 . 0 ..... 0 0 . 0 ..... 0 .. 0 0 0 .... 0 30
People v. Clausell,
182 A.D.2d 132 (2d Dept. 1992) . 0 . 0 0 000 ... 0 0 0 0 0 0 ... 0 0 0 . 0 ... 0 ...... 0 . 0 42
People Vo Cleary,
12 Misc.3d 129(A) (Appo Term, 1stDept. 2006) 0 0 ...... 0 ..... 0 ...... 0 0 0 . 31
People Vo Colon,
13 N.Y.3d 343 (2009) ...... 0 0 ................................. 0 0 0 .. 41
People v. Cosme,
203 AoD.2d 375 (2d Dept. 1994) 0 ...... 0 .. 0 . 0 0 ..... 0 0 0 0 .... 0 0 .... 0 0 0 0 0 57
People v. Crawford,
256AD.2d 141 (1stDept. 1998) ............... 0 0 0 0 0 .... 0 0 0 ........... 51
People Vo Danielson,
9 NoY.3d 342 (2007) o. 0 0 0 0 ...... 0 .. 0 . 0 0 0 .... 0 . 0 0 0 .... 0 0 ...... 0 ..... 27
People v. Daly,
57 AD.3d 914 (2d Dept. 2008),
affd on other grounds, 14 N.y'3d 848 (2010) .. 00 ... 0 0 . 0 0 . 0 . 0 ...... 0 .... 40
People Vo Davis,
81 N.Y.2d 281 (1993) 0 .................. 0 . 0 .............. 0 0 0 ....... 40
People Vo Fortunato,
70 AD.3d 851 (2d Dept. 2010) ..... 0 ... 0 o. 0 . 0 0 ........ 0 .. 0000 ....... 028
People v. Foss,
48 AD.3d 1219 (4th Dept.),
v
Iv. denied, 10 N.Y.3d 862 (2008) ..................................... 60
People v. Garcia,
66 AD.3d 699 (2d Dept. 2009) ....................................... 56
People v. Giocastro,
210 AD.2d 254 (2d Dept. 1994) ............................... '" .... 28
People v. Gioeli,
288 AD.2d 488 (2d Dept. 2001) ................................ 22, 28, 30
People v. Goins,
73 N.Y.2d 989 (1989) ........................................... 35,38
People v. Gottlieb,
130 AD.2d 202 (Ist Dept. 1987) ..................................... 50
People v. Haque,
70 AD.3d 967 (2d Dept. 2010),
cert. denied, 131 S.Ct. 903 (2011) ..................................... 56
People v. Jackson,
154 Misc.2d 718, 730 (Kings Co. 1992),
aff'd, 198 AD.2d 301 (2d Dept. 1993) ................................. 41
People v. Jackson,
168 Misc. 2d 182 (Bronx Co. 1995) ................................... 41
People v. Janota,
181 AD.2d 932 (3d Dept. 1992) ...................................... 42
People v. Jarrells,
190 AD.2d 120 (1st Dept. 1993) ..................................... 39
People v. Jones,
70 N.Y.2d 547 (1987) .............................................. 35
vi
People v. Joye,
198 A.D.2d 21 (1st Dept. 1993),
Iv. denied, 83 N.Y.2d 854 (1994) ..................................... 60
People v. Kidd,
76 A.D. 2d 665 (1st Dept.),
. appeal dismissed, 51 N.Y.2d 882 (1980) ............................... 30
People v. Lindsey,
52 A.D.3d 527 (2d Dept.),
Iv. denied, 11 N.y'3d 738 (2008) ..................................... 28
People v. Liriano,
173 A.D.2d 489 (2dDept. 1991) ...................................... 51
People v. Mackey,
249 A.D.2d 329 (2d Dept.),
Iv. denied, 92 N.Y.2d 927 (1998) ..................................... 39
People v Malkin,
250 N.Y. 185 (1928) ............................................... 50
People v. Mendez,
22 A.D.3d 688 (2d Dept. 2005) ....................................... 53
People v. Miller,
91 N.Y.2d 372 (1998) .............................................. 49
People v. Mitchell,
14 A.D.3d 579 (2d Dept. 2005) ....................................... 38
People v. Monferato,
11 Misc.3d 132(A)(App. Term 1st Dept. 2006) .......................... 30
People v. Moore,
61 N.Y.2d 575 (1984) .............................................. 56
va
People v. Morin,
192 A.D.2d 791 (3d Dept.),
Iv. denied, 81 N.Y.2d 1077 (1993) .................................... 58
People v. Morrison,
195 N.Y 116 (1909) ................................................ 49
People v. Morton,
288 A.D.2d 557(3d Dept. 2001),
cert. denied, 537 U.S. 860 (2002) ..................................... 58
People v. Munguia,
23 A.D.3d 583 (2d Dept. 2005),
Iv. denied, 6 N.Y.3d 778 (2006) ...................................... 49
People v. Norton,
90 A.D.2d.557 (2d Dept. 1982) ....................................... 61
People v. Otway,
71 A.D.3d 1052 (2dDept.),
Iv. denied, 15 N.y'3d 755 (2010) ..................................... 27
People v. Patterson,
106 A.D.2d 520 (2d Dept. 1984) ...................................... 57
People v. Pearce,
81 A.D.3d 856 (2d Dept.),
Iv. denied, 16 N.Y.3d 898 (2011) ..................................... 56
People v. Pena,
50 N.Y.2d 400 (1980),
cert. denied, 449 U.S. 1087 (1981) .................................... 56
People v. Peterson,
126 A.D.2d 680 (2dDept. 1987) ...................................... 57
Vlll
People v. Perez,
65 N.Y.2d 154 (1985) .......................................... passlm
People v. Ranghelle,
69 N.Y.2d 56 (1986),
superseded in other respects by codification of CPL 240.75. . ............. 40
People v. Riback,
13 N.Y.3d 416 (2009) .............................................. 52
People v. Riback,
57 AD.3d 1209 (3d Dept. 2008),
rev'd on other grounds, 13 N.Y.3d 416 (2009) ........................... 58
People v. Roberts,
203 A.D.2d 600 (2d Dept. 1994) ..................................... 42
People v. Rojas,
80 AD.3d 782 (2d Dept. 2011) ....................................... 28
People v. Rosario,
9 N.Y.2d 286,
cert. denied, 368 U.S. 866 (1961) ................................. passlm
People v. Schwartzman,
24 N.Y.2d 241,
cert. denied, 396 U.S. 846 (1969) .................................... 51
People v.Simpson,
109 A.D.2d 461 (1st Dept. 1985) ..................................... 50
People v. Soto,
285 A.D.2d 618 (2d Dept. 2001) ...................................... 42
People v. Spector,
170 Misc.2d 904 (App. Term. 1st Dept. 1996) ........................... 30
IX
People v. Steward,
54 AD.3d 880 (2d Dept.),
Iv. denied, 11 N.Y.3d 858 (2008) ..................................... 43
People v. Stuart,
137 A.D.2d 637 (2d Dept. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 61
People v. Thompson,
71 N.Y.2d 918 (1988) .............................................. 38
People v. Torriente,
131 AD.2d 793 (2d Dept. 1987) ...................................... 51
People v. Vilardi,
76 N.Y.2d 67 (1990) ............................................... 40
People v. Whitehead,
167 Misc.2d 49 (Greene Co. 1994) .......................................... 22
People v. Williams,
46 AD.2d 783 (2d Dept. 1974) ....................................... 57
People v. Ya-ko Chi,
72 AD.3d 709 (2d Dept. 2010) ....................................... 33
People v. Zephyrin,
52 AD.3d 543 (2d Dept. 2008) ....................................... 28
Strickler v. Greene,
527 U.S. 263 (1999) ............................................... 40
United States v. Bagley.
473 U.S. 667 (1985) ................................................ 4
x
STATUTES, CONSTITUTION AND RULES
u.s. Const.,
Amend. VI .................................................... 53
New York State Constitution,
Article 1, 2 ................................................... 53
Criminal Procedure Law
30.l0 ........................................................ 44
240.45 .... , .. '" ............................................. 35
240.75 .................................................... 38,40
440.l0 ........................................................ 4
450J0(1) .................................................... 55
470.l5 ................................................. 21,22,55
Civil Procedure Law and Rules
4518 ........................................................ 43
Civil Rights Law
50-b .......................................................... 4
Penal Law
70.30 ................................................... 8, 55, 56
130.40 ........................................................ 3
230.04 ........... , ........................................... 60
OTHER AUTHORITIES
Preiser, Peter, Practice Commentaries to McKinneys,
CPL 240.75 ..................................................... 38
Prince, Richardson, On Evidence,
6-406 (11 th ed. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
http://www.torah.org/leaming/yomtov/calendar/5765.html ................. 25
Xl
QUESTIONS INVOLVED
1. Whether the evidence was legally sufficient to prove eight counts of criminal
sexual act in the third degree when the only evidence of unlawful sexual conduct was
the testimony of the complainant, who was sixteen at the time of the alleged acts and
did not report them for four years; testified that he did not remember "months" and
was "confused"about years and dates; that he had abused drugs for years, including
right before the trial, which, he admitted, affected his memory; and his testimony was
riddled with inconsistencies and inherently incredible statements.
The trial court found the evidence sufficient.
2. Whether the verdict is against the weight of the evidence.
The trial court had no power to reverse on this ground.
3. Whether the conviction should be reversed in the interest of justice because
the evidence. leaves serious doubts about whether an innocent man has been convicted.
The trial court had no power to reverse on this ground.
4. Whether the conviction should be vacated because the People violated their
Rosario and Brady obligations by withholding notes of police interviews with the
complainant until after the complainant had testified, causing the defense to
inadvertently open the door to substantially prejudicial testimony, and, instead of
granting the defendant's request for a mistrial, the court "remedied" the impropriety
1
by allowing the defense to re-cross-examine the complainant, which did not cure the
prejudice.
The trial court refused the defendant's request for a mistrial or alternative
curative measures.
5. Whether the conviction should be vacated because the prosecutor questioned
a defense witness about accusations that he had sexually molested two boys years
earlier, without showing a good faith basis for believing those accusations to be true,
and when, despite the witness's denials, the prosecutor called the witness a child
molester during her summation.
The trial court, over objection, allowed the improper questions, denied one
objection to the prosecutor's characterization of the witness and sustained another, but
failed to strike the improper comment.
6. Whether, under Penal Law 70.30, the consecutive sentences imposed for eight
counts of a Class E felony, resulting in a sentence oflO%-32 years, should be reduced
to 10-20 years as required by statute; should be vacated as constituting an
unconstitutional penalty imposed on defendant for exercising his constitutional right
to a jury trial because it is eight times the plea offer of 1 %-4 years; or, alternatively,
modified as unduly harsh and excessive in the interest of justice.
The trial court rej ected defendant's constitutional challenge to the sentence and
imposed the excessive and illegal sentence.
2
NATURE OF THE PROCEEDINGS
On March 8, 2010, following a jury trial in Kings County Supreme Court
before the Hon. Patricia Di Mango, defendant Baruch Lebovits was convicted of eight
counts of criminal sexual act in the third degree. (P.L. 130.40.(2)) On April 12,
2010, he was sentenced to a term of imprisonment of 1 %-4 years on each count, to be
served consecutively, for a total of 10%-32 years. (A3, 711) On April 22, 2010, he
filed a notice of appeal. (A 1 )
While this appeal was pending, the Brooklyn District Attorney's office began
investigating attempted extortion and bribery relating to this criminal case. On April
11, 2011, Samuel Kellner, the father of a complainant whose misdemeanor charges
against Lebovits have been dismissed, was indicted for ten felony counts of extortion,
conspiracy, perjury and criminal solicitation. (People v. Kellner, No. 2538/2011,
Supreme Court, Kings County). The indictment alleges that Kellner, among other
misconduct, used emissaries to try to extort money from the Lebovits family,
promising that if payments were made, the complainants in the "two pending"
indictments against Lebovits, which includes the complainant in this case, would not
testify against Lebovits. Also, in November, 2010, Simon Taub was indicted for the
attempted extortion of the Lebovits family by threatening to file false molestation
charges again Lebovits' adult son. (People v. Taub, No. 4502/2010, Supreme Court,
3
Kings County). These indictments are matters of public record.
The information relating to these indictments has been set forth in a CPL
440.10 Motion to Vacate the Conviction filed with the Supreme Court, Kings County
, (hereafter, "Motion," and Affirmation of Nathan Z. Dershowitz, dated May 14, 2011,
Exh. B, hereafter "Dershowitz Aff."). The Motion includes extensive newly-
discovered information that demonstrates, among other things that Y.R.,! the
complainant in this case, was involved in Kellner's extortion, and, apparently was
induced to accuse Lebovits of a felony, not a misdemeanor. In a conversation
captured on tape, and provided to the DA's office, Y.R. told a friend that "a man is
sitting in jail because somebody [Kellner] had a premeditated plan not to put him away
but to make money, and manipulate me to back off" (Motion, Affidavit of Alan. M.
Dershowitz, sworn to April 27 ,2011,,3, Exh. 1 V Also, another Kellnerrecruit, M. T.,
has acknowledged that he lodged felony claims against Lebovits because Kellner
promised to and paid him money. That indictment has been dismissed. (Motion,
Dershowitz Aff., , 18 and 19, Sealed Exh. G) The Motion and Indictment are a matter
tPursuant to Civil Rights Law 50-b, because of the nature of the charges,
initials are used so as not to identify certain persons.
2 The People have just filed their opposition papers to the Motion, and have
admitted Kellner "brought Y.R. in" to report the alleged abuse. Affidavit of Detective
Steven Litwin, sworn to July 7, 2011, '11.
4
of public record.
3
After hearing about the indictments and Y.R.' s statement, inter alia, on April
15,2011, Justice John M. Levanthal granted Lebovits bail pending appeal. (A722-
STATEMENT OF THE FACTS
Appellant Baruch Lebovits, a businessman in the Hasidic community, was
convicted of engaging in non-forcible sexual acts with a 16 year old, Y.R. Y.R., the
only witness to testify to the alleged acts, was 22 years old at trial. By his own
admission, he was a thief and a drug abuser, with a profound disregard for judicial
procedures and an exceptionally poor memory for dates and details. He did not report
3 This Court may consider on appeal "matters of public record" or an
"incontrovertible official document," though dehors the record. Brandes Meat Com.
v. Cromer, 146 A.D.2d 666, 667 (2d Dept. 1989). See also O'Neill v. Board of
Zoning Almeals, 225 A.D.2d 782 (2dDept. 1996)(refusing to strike brief referencing
on appeal non-record deeds, building permits and tax records); In re Cento Properties
Co., 71 A.D.3d 1015,1017 (2d Dept201 O)(takingjudicial notice of court'sE-filing
web sites showing case marked as settled); In re Pi, 2011 WL 2624000 (2d Dept.
2011) (taking judicial notice of order of protection). Thus, the Court may take
judicial notice ofthe Kellner indictment and its content (an official record), and of
matters brought to the District Attorney's attention that were central to its decision
to seek that indictment, including Y.R.' s taped statement that "a man is sitting injail"
as the result of a "premeditated plan ... to make money."
4 Appellant is filing this Brief at this time to satisfy one of the bail
requirements. (A722) In the event the pending Motion is granted, the appeal will
become academic. If the Motion is denied, appellant intends to seek leave to
consolidate this appeal with an appeal from the denial ofthe Motion.
5
the alleged abuse for many years. At trial, in response to carefully scripted questions,
he gave carefully scripted answers, testifying that, once a month between May 2, 2004
and February 22,2005, on an unspecified day, he entered Lebovits' car and Lebovits
unzippered Y.R. 's pants, took out Y.R. 's penis, and put it in his mouth. Y.R. did not
testify that he ever protested and he described no force or coercion. Non-consent was
presumed by statute because Y.R, who turned 17 on February 23,2005, was between
16 and 17 when the acts allegedly occurred. Seventeen is the New York State age of
consent. Lebovits was sentenced to a prison term of 10213-32 years.
Y.R's testimony - the only basis for a conviction - was inherently incredible,
requiring that these convictions be reversed as a matter of law or in the interest of
justice. Moreover, it now appears that Y.R. 's testimony - indeed, the entire case - was
orchestrated by Samuel Kellner, the father ofP.K, who, before Kellner enlisted Y.R.,
had accused Lebovits of sexually inappropriate conduct. A second Kellner enlistee,
M.T., also accused Lebovits of sexual misconduct. Months later, Lebovits was
charged in Y.R's case. Y.R.' s charges were severed and only his case went to trial.
(A33-35) After Lebovits was sentenced, the P.K. and M.T. charges were dismissed.
(Motion, Dershowitz Aff. ~ 1 2 ) 5
5 As detailed in the Motion, M.T. has told the Brooklyn DA's office, and has
affirmed in an affidavit, that he was recruited by Kellner and accused Lebovits only
because Kellner paid him, and that Y.R. told him that he, too, was getting money
6
The inadequacy of the evidence is not the only ground for reversing this highly
suspect conviction. The People failed to produce notes of crucial statements YR. had
made to the investigating detective, Det. Steven Litwin, about conversations he
allegedly had with the sole defense witness, Rabbi Beryl Ashkenazi. The People
reaped an enormous advantage from their wrongdoing. The New York Court of
Appeals, on virtually identical facts, has held that, in these circumstances, a conviction
must be vacated. People v. Perez, 65 N.Y2d 154 (1985).
The wrong was compounded when, during Ashkenazi's cross-examination, in
an effort to destroy his credibility, the People asked Ashkenazi whether he had
molested two boys, securing permission to engage in this inherently prejudicial
questioning because the prosecutor claimed to have "notes" from Det. Litwin - notes
which the court did not review and which the prosecutor refused to provide to the
defense. One of these alleged victims has told the Brooklyn DA's office, and has
affirmed in an affidavit, that, before the prosecutor made this representation, Det.
Litwin visited his home at 2:00 a.m., accompanied by Kellner, and he denied having
been molested by Ashkenazi. (Motion, Dershowitz Aff. ~ ~ 32-34, Sealed Exh. D)
Though Ashkenazi, too, denied the allegations, the prosecutor, in her summation,
without evidentiary basis, called Ashkenazi an "accused child molester," who "abused
from Kellner. (Motion, Dershowitz Aff. ~ ~ 1 8 and 19, and Sealed Exh. G)
7
boys." (A620) The effort to destroy Ashkenazi, though based on spurious allegations,
was effective. At sentencing, the court stated that Ashkenazi had "failed" in his
testimony to cast doubt on Y.R. 's testimony. (A705)
Finally, the sentence imposed against Lebovitz, 1 0%-32 years, is in excess of
the statutory maximum and minimum, P.L.70.30(1)(e), and must be reduced to 10-20
years. Even that extremely harsh sentence - in essence, a life sentence - constitutes
excessive punishment unconstitutionally imposed because Lebovits refused to accept
a pre-trial plea offer that would have resulted in a total sentence of 1 %-4 years.
The Alleged Victim's Testimony
Y.R., the alleged victim, testified that from kindergarten he attended Yeshiva
- a Jewish religious school. (A150-53,270) Y.R. started using drugs at 14, "heavy
drugs" by 17, and became addicted to crack/cocaine and heroin. (A156-57,201-05,
212-18,223-27,240-41) Within a year, he was using drugs every day, spending about
$1,000 per week - a drug habit he supported by stealing from the charity boxes at
synagogues.
6
(A168, 206, 209, 227-28) This was before his alleged encounters with
the defendant.
6 At trial, Y.R.was unemployed and living with his parents; he had never held
ajob beyond intermittent work for his father. (AlSO-52, 212-14, 218-19, 228)
8
Y.R. was arrested four or five times, but was fuzzy on the dates. He was first
arrested for possession of cocaine, then for stealing DVDs, then for possession of
marijuana and Oxycontin. In 2009, he received a summons for possessing fireworks.
He never served jail time, but once was sentenced to seven days of community service
-raking leaves. (A158-61, 245-68) It was "very hard" and he was "heavy on drugs,"
so he never completed his service. (A245-51, 264) When he failed to show up for a
court appearance in November, 2009 - blaming his "drug problem" - a bench warrant
was issued. (A160, 260, 263) He justified his inability to testifY accurately about his
arrests by stating, "I am not good with dates and years." (A248)
Y.R.' s parents sent him to a rehabilitation center in Los Angeles - he was not
sure when. (A163, 232-34) He "relapsed in the airport" on the way home, asking a
friend to bring him cocaine "on the house." (A234-36) Later, "something like a long
time" after Los Angeles, he went into detox at Beth Israel, relapsed, and then went to
detoxin Coney Island. He was taken from detox to a "sober home" in Philadelphia.
He testified that he was at this "home" in November, 2009, but documents showed he
actually was in court in Brooklyn. (A163-64, 236-37, 266-68) On direct examination,
he insisted that he had been "clean" since December,1009 (A156, 163-64,219-20),
but, on cross-examination, he admitted that, during this period - the three months
before trial- he had used "weed" and alcohol. (A223, 229-30)
9
Y.R. testified that he went to school with Lebovits' son, Mende, and knew
Lebovits from the Hasidic community as a "respectful guy." (A165) Y.R. claimed he
occasionally saw Lebovits driving his car and, once, he and a friend accepted a lift
from Lebovits. Lebovits allowed him to drive his car, though Y.R. did not have a
license. (A167, 170-72,463)
As to the ten counts in the indictment - structured so that each. count
represented one alleged act, each in a different month from May 2, 2004 through
February 22,2005 - Y.R. was asked virtually the same question ten times: whether
he had seen Lebovits in a given month, and, if so, what had happened. In response,
Y.R recited, ten times, in virtually identical language each time, that Lebovits opened
Y.R's zipper, took out his penis, and put his mouth on it. (A169-70, 175-78).
7
Y.R. testified that the encounters took place after school, between 6:00 and
7 :00 p.m., sometimes in spring or summer, when it is daylight, in Lebovits' car, which,
he testified, did not have tinted windows, on busy streets in Borough Park: in front of
stores, apartment houses, the subway, and, once, even a few blocks fromLebovits'
home. (A179, 269-70, 462-66) He did not remember any details. (A174) He did not
7 The prosecutor had typed up the questions and Y.R. admitted he had
reviewed the questions and answers several times, including right before he took the
stand. (A194-95)
10
testify that he ever protested or refused, and claimed he never told anyone because he
was not "comfortable talking about it." (AI81)
Lebovits received consecutive sentences for separate acts, each of which
allegedly took place in a separate month. Thus, it was imperative that Y.R. accurately
testify to a specific act each month. Yet, by his own admission, Y.R. was incapable
of saying what year, let alone what month, anything occurred. (A248,470-74) As he
put it, he was "confused" about the "months" (A470), was "not clear with the months"
(A472), and was "not that good in months" (A472), and was "not that good with the
months." (A474)
Though "not clear with the months," Y.R. testified that an act occurred once
in July and once in August, 2004. (A472) When confronted with the fact that he was
actually at summer camp in upstate New York in July and August, 2004, Y.R. initially
claimed that he came home from camp several times. He later admitted that he was
not "clear in [his] head" whether the acts had taken place in July or August. (A270-
73,470-72) Thejury acquitted Lebovits of those two counts. (A653)
Having been wrong about July and August, 2004, Y.R. was likely wrong about
September. Y.R. acknowledged that there was no school during the month of the
Jewish holidays - and the acts always took place after school. Yet he professed not
to know whether the Yeshiva was closed in September because, he claimed, he did not
11
know the month when Rosh Hashana or Yom Kippur usually fell. (A4 72-7 5) Lebovits
was convicted of an act allegedly occurring during September, 2004 and received a
consecutive sentence for that alleged act.
Similarly, though completely "confused" about dates, Y.R. testified that an act
took place in February, before February 23, 2005,his 17
th
birthday, the age ofconsent.
Lebovits was convicted of this alleged act, receiving yet another consecutive sentence.
According to Y.R, in December 2008, he reported his encounters with
Lebovits to Det. Steven Litwin. (AI81-83)8 He was using drugs at the time and
admitted that they "mess[] around with your memory." (A242-43) He claimed he did
not disclose his drug use to Det. Litwin and that Litwin never questioned him about
it or asked him to take a drug test. (A237-39) Litwin admitted that he was aware of
Y.R.'s drug problem. (A51O-11) It was about this time, when he was "heavy on
drugs," that he testified before the grand jury, locking in his testimony about dates.
(A252)
Y.R. also admitted he desperately needed money. (A255)9
8 Though Y.R. did not mention it, Det. Litwin has attested that Kellner brought
Y.R in to see him. (Litwin Af ~ 1 l )
9 Y.R. did not report the alleged abuse for four years. Over objection, the
People introduced the testimony of Dr. Don Lewittes, a psychologist, who claimed
that "rape trauma syndrome" could explain this delay in reporting. (A3 00-0 1, 310-15,
316-19) Dr. Lewittes had not met or spoken with Y.R., and admitted he did not know
12
The RosariolBrady Violations
Before opening statements on March 3rd, the People sought an offer of proof
as to Rabbi Beryl Ashkenazi, on the defense witness list. Defense counsel advised
that, if called, Ashkenazi would testify that, within the last twelve to fourteen months,
Y.R. had spoken with him and "in sum and substance admitted to him that he was
going to try to make money by accusing Mr. Lebovits of these crimes." (Al15-16)
During Y.R.' s cross-examination, defense counsel asked Y.R. only one
question about Rabbi Ashkenazi: whether he knew of him. Y.R. responded that he had
been his high school teacher. (A268-69)
On redirect, the prosecutor pursued this line of questioning. Y.R. testified that
he met Ashkenazi "randomly" on the street and went to his house. Rabbi Ashkenazi
said he could get him money to drop the case but called him a day or two later and said
Y.R. should "forget about what happened." (A275-80) When asked whether he had
asked Ashkenazi for money, rather than the other way around, Y.R denied it, but
admitted he was desperate for money. (A280-81) According to Y.R, he "told [Det.
Litwin} the whole story. He should have everything down. " (A278)
whether Y.R suffered from "rape trauma syndrome" and that delayed outcries can be
false. (A327-28, 330-33, 337-38)
13
The next day, March 4th, after Y.R.'s testimony, the prosecutor reported that
Litwin had just turned over four withheld documents. Two constituted handwritten
notes of two separate conversations Litwin had with Y.R. on January 14 and 20,
2009.10 The January 14 notes recorded that Y.R. told Litwin that Rabbi Ashkenazi had
called him about two months earlier and that, when he went to see Ashkenazi, the
Rabbi said that it "was not nice" to prosecute Lebovits, that "maybe there could be a
money settlement," and that he could have an organization raise $5,000 to $10,000 if
Y.R. would drop the case. A few weeks later, Ashkenazi retracted that offer because
he did not want to "get in trouble with the law," but still offered to help with Y.R.'s
drug problem. (A363-64,719)
The January 14 notes also covered conversations Y.R. claimed to have had
with the recently-indicted Samuel Kellner. Y.R. told Litwin that, the day before,
"Kellner called" and told him to make no agreement with anyone because Kellner
would get Y.R. "the right amount" - that is, $200,000 - and that "they" wanted Y.R.
''to go away" for $5,000-$10,000, but he would be "crazy" and "shouldn't take it."
(A 719) Det. Litwin admitted that, despite Y.R. acknowledging that Kellner was going
to pay him, he did not follow up to determine whether Kellner had tried to influence
Y.R.'s testimony. (A508-09)
10 The other two involved Lebovits' car.
14
The second set of notes, for January 20, continued Kellner's efforts to shape
Y.R.' sease. Y.R. told Litwin that Kellner had called the prior day saying he wanted
to "help" Y.R. and was raising money. Y.R. told Litwin that he (Y.R.) "accused"
Kellner of "wanting to keep" the money and oftrying to cheat him. Kellner responded
that he would "prove" that he was trying to help and brought Y.R. to the home of a
"wealthy man" who said he wanted to help Y.R. because of "all the bad things people
in the community had done to him in the past." This man talked about contributing
money to Y.R. and raising $50,000. Y.R. told Litwin that he was "supposed to pick
up $10,000 tomorrow," and that Kellner had told him he "doesn't have to sign
anything." (A715) Again, even though Y.R. said he was going to "pick up $10,000,"
Litwin admitted he did not investigate these allegations, though suggestive of bribery
or tampering. (A508)
The withheld notes were highly prejudicial and the defense, which had
unwittingly opened the door to this line of testimony, sought a mistrial. That was
denied. (A367-418) Alternatively, the defense sought a sanction that might at least
minimize the prejudice: to re-open its case, strike any reference to Rabbi Ashkenazi,
and for an adverse inference charge. The defense prepared a charge, instructing that:
because of the violation of the People of these long standing and well
known rules, I emphasize that you may consider such serious violations
15
in your detennination as whether any reasonable doubt exists which
would require you to return a verdict of not guilty as to Mr. Lebovits.
(A 721) The suggested charge also instructed the jury that the court was:
(A721)
striking from the record all testimony about Rabbi Beryl Ashkenazi and
any testimony by Y.R. that anyone offered him money to drop the case,
and I instruct you that you are to completely erase such testimony from
your minds and give it no consideration in your deliberations.
Although agreeing there was a per se discovery violation, the court refused
any of those proposed remedies. Instead, concerned mostly about finding the "least
dramatic remedy" (A398, 440), the court allowed the defendant to recal! Y.R. for
further cross-examination and then, in the court's words, gave a "bare bones" charge
(A451c), that failed even to advise the jury that it could draw an adverse inference
from the People's failure to produce the notes:
We are going to recall [Y.R.] as a witness to the stand, and I am going
to explain why. On January 14, 2009 and on January 20, 2009, the .
detective in this case, Detective Litwin, took some handwritten notes
concerning conversation that he had with the complainant witness in
this case ... Oll those dates. The law requires that those notes be given to
the defense. In other words, the detective had an obligation to tum
those notes over to the prosecution who then was obligated to turn them
over to the defense. They were not given to the defense prior to the
start of this trial. Instead they were turned over to [the defense] on
March 4th of 20 1 O. That was the day after the victim completed his
testimony. Therefore, the [complainant] is being ordered to be recalled
to the witness stand by me to allow [defense counsel] to further or
16
continue his cross examination of him in light of the information in
these notes, okay.
(A459-60)
This "remedy" compelled the defense to re-explore Y.R.'s alleged
conversations with Ashkenazi. On renewed cross-examination, Y.R vaguely recalled
discussing with Ashkenazi why he did not go to Mende [Lebovits ' son] 's wedding, but
denied it was because he brought the case to get money from Lebovits. (A 478-79) He
testified that Ashkenazi said he had connections to an organization that would raise
money because Y.R.'s charges were "bad for the community." Shortly afterwards,
Ashkenazi phoned and said to forget it because he did not want to get involved in a
crime, but still offered to help him with his drug problem, (A479, 481-83) Y.R.
acknowledged that Ashkenazi never said that Lebovits wanted to offer him money.
(A481-82)
Y.R. told Litwin about his conversations with Ashkenazi, and that he had been
at the house of a very wealthy man who offered him money, though he never said or
implied it was on behalf of Lebovits. He claimed he ran out of the man's house
because of a an emergency with a friend, though that is not reflected in Litwin's notes.
(A484-86, 492, 719) Litwin's notes reflected Y.R.'s statement that he was supposed
to pick up $10,000 the next day. Y.R said he did not recall that. (A488-89)
17
Detective Litwin testified, primarily to explain his failure to produce his notes
of interviews with Y.R .. A 29-year veteran with the Brooklyn Police Department,
Litwin was with the Special Victim's Squad for 12 'l'2 years. (A495) He first met Y.R.
in September, 2008, and his allegations led him to open an investigation ofLebovits.
Yet his entire file was "maybe 25, 30 pieces of paper." (A496-99, 494, 504)
Litwin testified he gave the notes of his interviews with Y.R. to the DA, but,
though aware of his Rosario obligations,forgotto turn over the notes of his January
14 and 20 interviews. (A50l, 503-05) Litwin knew ofY.R.'s serious drug habit, but
never pursued whether Y.R. had engaged in criminal activity to obtain money to buy
drugs, and testified that Y.R. never disclosed that he stole from synagogues to buy
drugs. (A51O-l1)
Rabbi Ashkenazi's Testimony
Once Y.R. testified that Ashkenazi had approached him with an offer of money,
the defense had no choice but to call Ashkenazi to rebut Y.R. '8 testimony. (A530)
Ashkenazi testified that Y.R. had been his student from October, 2003 until June, 2004
and that he knew Lebovits. (A532-35) In 2008, he bumped into Y.R., and, in June,
2008, Y.R. called and asked to meet with him, but never did. (A535-36) On March
20, 2009, Y.R. showed up at his home, crying and asking for money. (A542-43)
18
Rabbi Ashkenazi also encountered Y.R. in early December, 2008. Y.R. said
he had not attended Mende's wedding because of his claim against Lebovits. He told
Ashkenazi that he needed money for his drug problem and that people had told him
that he could make money from the case. (A540) Two weeks later, Y.R. called again,
asking him to try to convince the Lebovits family to pay him money to drop the case.
(A540-4I, 548-49) Y.R. called again a week later to ask about the money; Ashkenazi
said he did not want to be involved. Ashkenazi denied ever offering Y.R. money not
to testify in this case. (A542-44)
When defense counsel protested that the "remedy" compelled him to call
Ashkenazi to rebut Y.R.' s testimony (A4I2), the prosecutor kept silent. The defense
thus made the decision without knowing that the prosecutor intended to ask Ashkenazi
whether he had molested young boys, an area of inquiry that undoubtedly would have
impacted on that decision. The prosecutor, without first obtaining a ruling on whether
she had a good faith basis to air these highly inflammatory allegations, asked
Ashkenazi whether, in 2000, he had touched a I5-year old boy. (A555) The defense
objected. At side bar, the prosecutor, holding what she identified as Litwin's "notes,"
claimed that two male friends ofY.R. 's had told Litwin they were sexually abused by
Ashkenazi many years earlier, but that charges were not brought because of the statute
of limitations. The prosecutor did not allow defense counsel to see Litwin's "notes"
19
and the court did not review them. Nonetheless, over objection, and without even
looking at the alleged "notes," the court decided that the prosecutor's statement alone
constituted a sufficient good faith basis, and permitted her to continue. (A556-58)
The prosecutor asked again about this alleged encounter, then asked whether
Ashkenazi also had molested a 13 year-old in 1998. Rabbi Ashkenazi unequivocally
denied both allegations. (A558-60) Thus,there was no evidence of any improper
activity, only the prosecutor's questions. I! Nonetheless, the prosecutor argued in
closing that Rabbi Ashkenazi "is an accused child molester." Seemingly emboldened
by the court's refusal to strike that comment, the prosecutor added, "I submit that he
uses his relationship as a teacher to abuse boys." The court sustained that objection,
but provided no other relief. (A620)
The jury returned a verdict of guilty on eight counts, acquitting Lebovits of the
counts involving July and August, 2004. (A651-54)
11 As noted, one ofthese alleged victims has affirmed that he told Det. Litwin,
during the trial and before the prosecutor's representations, that Rabbi Ashkenazi had
not molested him. (Motion, Dershowitz Aff. ~ ~ 32-34, Sealed Exh. D)
20
ARGUMENT
I. THE CONVICTIONS SHOULD BE REVERSED BECAUSE THE
EVIDENCE IS LEGALLY INSUFFICIENT AND AGAINST THE
WEIGHT OF THE EVIDENCE OR IN THE INTEREST OF JUSTICE
The People crafted their indictment, seemingly with an eye to consecutive
sentences, to allege ten separate acts, each occurring during a specific month - a
scenario Y.R. claimed he "worked" out with Litwin. (A470-71) The prosecution,
therefore, had to prove beyond a reasonable doubt that the ten sexual acts alleged in
the indictment took place in each of the months alleged in the indictment - that is,
once a month from May 2, 2004 through February 22, 200S - before Y.R.'s 17
tl1
birthday. But, by his own admission, Y.R. could not testify at all, much less
accurately, about the dates or even months the acts allegedly occurred.
This Court's power to reverse a conviction because of evidentiary deficiencies
has three sources. First, pursuant to CPL 4 70.1S( 4)(b), this Court must reverse a
conviction when the "evidence adduced at a trial" was not "legally sufficient," tested
by whether "there is any valid line of reasoning and permissible inferences which
could lead a rational person to the conclusion reached by the jury on the basis of the
evidence at trial." People v. Bleakley, 69 N.Y.2d 490, 49S (1987).
Second, under CPL 470.1S(S), this Court has the power to determine
whether the conviction is supported by the weight of the evidence:
21
Even if all the elements and necessary findings are supported by some
credible evidence, the court must examine the evidence further. If
based on all the credible evidence a different froding would not have
been unreasonable, then the appellate court must, like the trier of fact
below, "weigh the relative probative force of conflicting testimony and
relative strength of conflicting inferences that may be drawn from the
testimony."
Bleakley, 69 N.Y.2d at 495, quoting People v. MiIIer, 291 N.Y.55, 62 (1943).
Finally, under CPL 4 70.15(3), even if the Court decides that the verdict is not
against the weight ofthe evidence, it can reverse a conviction in the interest of justice
if it is not convinced of the defendant's guilt beyond a reasonable doubt. People v.
Gioeli, 288 A.D.2d 488, 489 (2d Dept. 2001).
In exercising its unique powers of review, this Court should take judicial notice
of the Kellner indictment and other matters of public record. Moreover, because "in
criminal prosecutions, .the People are held to speak with one voice," People v.
Whitehead, 167 Misc.2d 49,51 (Greene Co. 1994), the People are bound by the DA's
decision to indict Kellner for an extortion plot in connection with this very case.
A. The Convictions Should Be Reversed Because the Evidence Was Legally
Insufficient
The only evidence at trial that Lebovits had committed a crime came from Y.R,
and he was a terrible witness - a drug addict with admitted memory problems,
incapable of testifying unless spoon-fed answers by the prosecutor. For the extortion
22
plot to succeed, Y.R., a Kellner recruit, had to allege multiple felonies that would
subject Lebovits to consecutive sentences. The testimony about the ten alleged
incidents was patently scripted. Asked first whether he saw Lebovits between May
2 and May 31, 2004 and second if anything happened, Y.R. responded with, "I was
in his car. He opened my zipper. He took my penis out and put his mouth on it."
(A169-70) The prosecutor's identical pair of questions as to each succeeding month
generated identical answers: for example, as to December, 2004 and January, 2005,
Y.R. testified:
Q: What, if anything, happened between you and the defendant during
this time period?
A: He unzippered my zipper, took out my penis and put his mouth on
my penis.
***
Q: What, if anything, happened between you and the defendant during
that time period?
A: The same thing. He unzippered my zipper, took out my penis, and
put his mouth on my penis.
(A177-78)
Virtually the exact same questions were asked, and the exact same answers
given, for the other months in which acts allegedly occurred. (A175-78)
Y.R. repeatedly stated he had no memory for dates. Yet this was a crime utterly
dependent on Y.R. getting the dates right. He had to know what year the alleged acts
23
occurred because, if a year later, lack of consent would not be presumed and there
would be no crime. And he had to know in what months the acts allegedly occurred
because each month constituted a separate count.
Despite this, Y.R. was a disaster when it came to years or months. When asked
. about his first arrest for possession of cocaine - an event of obvious significance post-
dating the alleged sexual misconduct by several years - he could not say when it
happened, guessing "early '07, 1 think, somewhere around there." (A246) Asked
whether his next arrest (for stealing DVDs) was in June, 2008, he responded, "1 am not
good with dates and years." (A248) Asked about his failure to make a mandatory
court appearance in April, 2009, he could only assume that the date "makes sense."
(A249-50) Asked whether he had appeared in court on November 28,2009 Gust a few
months before the trial), he responded, "1 was in court. 1 don't remember the date."
(A266) When defense counsel tried to facilitate his recollection, he still could only
guess that, "It makes sense, but 1 don't remember exactly." (A266)
Unable to testify to these defming matters, Y.R. was worse at testifying when
the sexual acts allegedly took place. Questioned about whether he was even in
Brooklyn in July and August, 2004, given that he spent the summer in upstate New
York at a religious camp, he testified, "I don't remember exactly ... but 1 went home
a lot." (A469) Pressed about whether that was true, he admitted, "It's not that clear
24
in my head, no. It's not that clear. But .... we [that is, he and Litwin] worked it
through when this whole thing happened and whatever, so." (A470) Finally, he
admitted he could not identify if or when he supposedly came home:
We went through the thing when I was with, Detective Steve took the
report. We went through everything and everything. At that time I
remembered everything and it made sense. But now it's like asking me
with the months, I can't tell you for sure. I get confused.
(A470) Nor was it "clear in his head" about August: "August, I'm not sure because
I am not clear with the months to be exact right now, but everything did happen."
(A471-72)
Defense counsel moved on to September, the month of Rosh Hashana and Yom
Kippur. Y.R. admitted that he did not attend school during that month (and he claimed
the encounters always took place after school). (A179, 472, 474) He could not
remember whether those holidays usually fell in September or October:
12
I tell you again. I am not that good in months, like in months,
remember like exactly you tell me August of whatever or whatever. I
am not good with that. ... Again, I am not sure with that.
(A472-73)
Finally, when asked whether there was no school during September, Y.R.
turned to the court for relief:
12 In 2004, Rosh Hashana fell on September 16-17 and Yom Kippur on
September 25. (http://www.torah.org/learning/yomtov/calendarl5765.html)
25
The Witness: Can I ask you something?
The Court: Are you okay with him asking me a question?
The Witness: It's all right. You can come. It's not a secret. Ijustwant
to tell you something that I am not that good with the months.
The Court: The witness is saying to me that he is not good with the
names of the months.!3 And he did know this was March. He is saying
he can't necessarily give to you the names of the months. I asked him
ifhe wanted to say it in another language, but he said it's just that he
has difficulty with the months.
(A473-74)
Despite not knowing when anything in his life took place, often not even a
ballpark year, Y.R. testified that the February 2005 act took place before February
23rd. He had to set that cut-off date, because, assuming there was any encounter with
Lebovits, if it occurred after February 22d, it was not a crime, something he likely
"worked through" with Litwin beforehand. Y.R. also admitted that his memory was
confused because of his heavy drug use and that he was using drugs when he first
made his accusations and when he testified before the grand jury. (A242-43)
Y.R. 's testimony that a sexual act took place on a once-a-month basis is
inherently incredible. He was nearly 17 when these acts allegedly took place, not a
small child who can be excused for not knowing the "months." Y.R. could not even
13 The court misstated Y.R 's testimony: he did not say he did not know the
names ofthe months; he insisted he was not good with "the months."
26
pinpoint the year something happened, though, apparently, with Litwin's help, he
could "work that through." Much time had elapsed from between the alleged acts and
Y.R. first reported them. Yet Y.R. admitted he was heavily into drugs throughout this
period, which, he admitted, interfered with his memory. Surely, Y.R.'s memory,
fogged by drugs in 2004, was not suddenly recaptured with precision many drug-
addled years later. Given the absence of any evidence to support his claim that a
sexual act took place once a month from May, 2004 through February 22, 2005, and
given how close he was to the age of consent, making it indispensable that he know
what year the activities allegedly occurred, the evidence is legally insufficient.
B. The Convictions Should Be Reversed As Against the Weight of the Evidence
Even ifthe evidence is legally sufficient, this Court must go one step further
and weigh the evidence to determine whether the conviction should stand. When the
Court "performs the weight of the evidence review," it "sits as a thirteenth juror and
decides which facts were proven at trial." People v. Danielson, 9 N.Y.3d 342,347-48
(2007). See also People v. Cahill, 2 N.y'3d 14, 58 (2003). As the Court of Appeals
has held, "weight of the evidence review requires a court first to determine whether
an acquittal would not have been unreasonable." Danielson, 9 N. Y.3d at 348. Then,
the "court must weigh conflicting testimony, review any rational inferences that may
be drawn from the evidence and evaluate the strength of such conclusions. Based on
27
the weight of the credible evidence, the court then decides whether the jury was
justified in finding the defendant guilty beyond a reasonable doubt." Id. (emphasis
added) This Court often exercises its power to review the evidence and reverse a
conviction that is against the weight of the evidence. For example, in People v.
Otway, 71 A.D.3d 1052 (2d Dept. 2010), involving sexual abuse of a child under 11,
the complainant's testimony on timing and dates, like here, was very vague. The
Court reversed he convictions dependent on the victim being less than 11, finding
that, absent corroboration, the 'Jury was not justified in finding that the alleged
incidents took place at specific times and dates prior to the complainant's 11th
birthday." Id. at 1054. See also People v. Zephyrin, 52 A.D.3d 543 (2d Dept. 2008)
(reversing when the complainant's testimony was "contradictory and incredible" and
no other evidence supported the conviction); People v. Fortunato, 70 A.D.3d 851 (2d
Dept. 2010) (reversing murder conviction where conflicting testimony on critical
matter); People v. Rojas, 80 A.D.3d 782 (2d Dept. 2011) (reversing when weight of
evidence failed to disprove justification); Gioeli. 288 A.D.2d at 488-89 (reversing
when credibility of alleged sexual victim severely impeached as to dates of rapes);
People v. Lindsey, 52 A.D.3d 527 (2d Dept. 2008) (similarly reversing); People v.
Giocastro, 210 AD.2d 254 (2d Dept. 1994)(similarly reversing).
28
The evidence here heavily weighs in favor ofLebovits. Because Y.R. could
not say what year something took place, his ability to testify that these uncoerced acts
all occurred in the year before he could legally consent is patently suspect. Because
Y.R. could not testify to "months," the People's proof of the specific crimes of
conviction for which Lebovits was sentenced consecutively is unsupported. The
acquittals on the July and August counts demonstrate that the jury concluded that Y.R.
was not credible as to those counts. An acquittal on the other counts "would not have
been unreasonable."
Moreover, Y.R.' s entirely uncorroborated story was implausible: supposedly,
Lebovits committed these sexual acts while Y.R. drove around with Lebovits in a car,
without tinted windows, in a crowded neighborhood, close to Lebovits' home, often
during daylight. IfYR. is to be believed, Lebovits not only made no effort to conceal
his behavior, he virtually paraded it before his family and neighbors.
Given Y.R.' s propensity for dissembling, his memory deficiencies, the inherent
implausibility of his account, his desperate need for money to feed his drug habit, his
testimony that he believed Lebovits and his son were wealthy, and the absence of any
corroborating fqrensic or testimonial evidence, 14 the convictions are against the weight
14 Though corroboration is no longer required to establish a sexual offense,
when the complainant, as here, suffers from acknowledged memory lapses, and tells
a story rife with inconsistencies and improbabilities, corroboration can be vital in
29
of the evidence. It is far more plausible that, as Y.R. said on tape, Lebovits is "sitting
injail" as a consequence of Kellner's extortion plot.
C. The Convictions Should Be Reversed In the Interest of Justice
Even if this Court deems the verdict not against the weight of the evidence, it
should exercise its power to reverse the conviction and dismiss the indictment in the
interest of justice. This Court may reverse in the interest of justice if "the evidence in
[the case] leaves [the Court] with a very disturbing feeling that guilt has not been
satisfactorily established." Gioeli, 288 A.D.2d at 489, quoting People v. Crudup, 100
AD.2d 938, 939 (2d Dept. 1984).
In determining whether an interest-of-justice reversal is appropriate, courts
conduct a broad examination of the facts and circumstances of the case. See. e.g ..
Peoplev. Kidd, 76 AD. 2d665, 668 (lstDept. 1980) (reversing where inconsistencies
in testimony, defendant had no prior record, was employed, and had a stable family
relationship); People v. Spector, 170 Misc.2d 904, 905 (App. Term. 1 st Dept. 1996)
(reversing where defendant was a college graduate with no prior criminal record, and
evidence left serious doubt about guilt); People v. Carthens, 182 AD.2d 460 (1st
Dept. 1992) (reversing where defendant had no prior record and "many troubling
inconsistencies"); People v. Monferato, 11 Misc.3d 132(A) (App. Term 1st Dept.
assessing the sufficiency and/or the weight of the evidence.
30
2006) (reversing where videotape did not support allegation of touching and
complainant did not contemporaneously protest); People v. Cleary, 12 Misc.3 d 129( A)
(App. Term 1 stDept. 2006)(reversing where prosecution witnesses gave "substantially
divergent accounts" of alleged crime and defendant led unblemished life).
Here, after Litwin and Y.R. "worked" out the story, the prosecutor, to secure
consecutive sentences, structured the indictment to allege ten separate incidents.
Having done so, the prosecution should be held to its proof. This Court should have
disturbing doubts about whether guilt as to each of those acts was proven beyond a
reasonable doubt,and should reverse the convictions in the interest of justice.
Most importantly, justice demands that these convictions be reversed. Felony
convictions carrying such a harsh sentence cannot in fairness be based on vague
recollections, some of which have been shown to be false. This is especially true
when, as here, the District Attorney's office has acknowledged that the accusations
were integral to an extortion plot which apparently depended on the alleged victim
claiming multiple felonies. Moreover, as shown below, the convictions were secured
as the result of the People's Rosario and Brady violations, and the People overstepped
appropriate cross-examination and argument in accusing the sole defense witness,
without an adequate good faith basis, of sexually molesting teenage boys. Taken
31
together, all these factors militate in favor of a reversal of all the convictions in the
interest of justice.
II. THE PEOPLE VIOLATED THEIR ROSARIO AND BRADY
OBLIGATIONS BY WITHHOLDING NOTES OF POLICE
INTERVIEWS WITH THE COMPLAINANT UNTIL AFTER THE
WITNESS TESTIFIED, SUBSTANTIALLY AND IRREPARABLY
PREJUDICING THE DEFENSE. RE-OPENING CROSS-
EXAMINATION DID NOT CURE THE PREJUDICE .
. From the first trial day, when the defense provided an offer of proof as to Rabbi
Ashkenazi, the prosecutor was on notice that the defense might seek to prove that Y.R.
had approached Ashkenazi to get money for dropping this case. On cross-
examination, defense counsel asked Y.R. whether he knew "someone in [his]
community" named Beryl Ashkenazi; Y.R. replied that he had been a teacher. (A268)
That was all the testimony about Ashkenazi up to that point. On redirect, the
prosecutor pounced: she asked Y.R. a series of questions about his alleged
conversations with Ashkenazi. Y.R. testified that Ashkenazi had approached him,
wanting "to give me a deal to take money and drop the case," but that Ashkenazi later
retracted, saying he wanted "to back out of the whole thing." Y.R. said he told this to
Litwin, insisting, "] told [Det. Litwin} the whole story. He should have everything
down." (A275-78)
32
This was the first the defense heard about Litwin having met with Y.R to
discuss Rabbi Ashkenazi and having made notes of his conversations with Y.R.. The
next day, after Y.R. had testified, the prosecutor produced Litwin's handwritten notes
of conversations with Y.R on January 14 and 20,2009.
15
Both were required to be
produced to the defense before Y.R. took the stand.
The significance of the withheld notes was immediately apparent. The defense
had been ambushed. Unaware that Y.R. had told Litwin that Ashkenazi had
approached him to discuss money, defense counsel unwittingly opened the door to a
highly prejudicial area of testimony.16 If the jury believed Y.R, it could view
Ashkenazi as a conduit for Lebovits and his alleged discussions with Y.R as evidence
15 The prosecutor claimed not to know about Litwin's notes. (A376-78) But
the defense had raised the issue of bribes with the DA's office before Y.R. told Litwin
about Rabbi Ashkenazi, so the prosecutor had ample reason to ask her investigating
detective about whether anything like this existed. (A421-22) Moreover, based on
what she said was only a five-minute talk with Y.R. immediately before he took the
stand, on re-direct, the prosecutor asked Y.R. specific questions about his encounters
with Ashkenazi. (A276)
16 In People v. Ya-ko Chi, 72 A.D.3d 709, 710 (2d Dept. 2010), this Court
reversed a bench trial conviction where, over objection, the victim was allowed to
testify that defendant's relative had offered him money not to testify. Absent
evidence that the defendant had participated in the alleged bribe offer, "this
inflarnmatoryevidence was not admissible ... to infer the defendant's guilt." Because
Y.R. testified Ashkenazi never said he was acting on Lebovits' behalf (A481-82),
here, too, the evidence was not admissible to "infer" Lebovits' guilt. Of course, here,
counsel had been sandbagged into "opening the door" to his line of testimony.
33
of consciousness of guilt. There was no way to undo the prejudice. Defense counsel
immediately sought a mistrial, arguing that withholding key documents until after Y.R.
had testified was an irreparably harmful Rosario and Brady violation. Defense counsel
represented that he would never have asked Y.R. about Ashkenazi had he known that
Y.R. had reported to the police that Ashkenazi had approached him with an offer of
money to drop the case, rather than the other way around, as defense counsel believed.
There was, as defense counsel argued, no remedy other than a mistrial. Further
questioning ofY.R. would serve no purpose because "the cat [was] out of the bag."
(A412) At the very least, the defense sought an adverse inference charge and/or to
strike Y.R.'s testimony about Ashkenazi. That, too, was denied. (A455)
The failure to declare a mistrial or otherwise mitigate the prejudice demands
reversal. The "remedy" - renewed cross-examination of Y.R. - reinforced the .
prejudice, and then was aggravated by a jury charge that "the victim" was returning
because the prosecutor had found notes after "the victim" had completed his
testimony. (A459-60) Moreover, the "remedy" gave the prosecutor a second
opportunity to ambush the defense. Without any prior warning, during her cross-
examination of Rabbi Ashkenazi, the prosecutor asked Ashkenazi whether he had
molested a fifteen year-old boy. The court allowed the inquiry because the prosecutor,
holding what she claimed were more Litwin "notes," represented that Litwin had
34
interviewed two ofY.R.' s friends who claimed to have been molested as teenagers by
Ashkenazi. (A555-59) The prosecutor was thus allowed to ask Ashkenazi about the
fifteen year old and then about a thirteen year old boy. Rabbi Ashkenazi adamantly
denied any abuse. (A558-59)17
As demonstrated below, the withholding ofthe lead detective's notes of two
interviews with the complaining witness constituted a violation of People v. Rosario,
9 N.Y.2d 286, cert. denied, 368 U.S. 866 (1961), now codified as CPL 240.45(1),
pursuantto which the People mustproduce "before the prosecutor's opening address,"
the prior recorded statement of a person that the "prosecutor intends to can as a
witness." "A witness's prior statement must be forms hed to the defendant at a time
when it can be useful to the defense." People v. Goins, 73 N.Y.2d 989,991 (1989).
Rosario is founded on the court's "firm conviction that 'a right sense of justice entitles
the defense to examine a witness' prior statement, whether or not it varies from his
testimony on the stand. '" People v. Jones, 70 N.Y.2d 547, 550 (1987), quoting
Rosario, 9 N.Y.2d at 289.
Also as demonstrated below, the failure to produce Litwin's notes violated
. Brady v. Mruyland, 373 U.S. 83 (1963), and its progeny, pursuant to which the
17 The then thirteen year old has since affirmed that he told Litwin during the
trial that he had not been molested by Rabbi Ashkenazi. (Motion, Dershowitz Aff.
,,32-34, Sealed Exh. D)
35
prosecutor must produce to the defense any evidence that may be viewed as favorable
to the accused, including impeachment material and material critical to defense
strategy. Late production of Rosario or Brady material that prejudices the defense -
as it assuredly did here - requires the grant of a new trial.
A. The Rosario Violation Constitutes Reversible Error
This is the rare case where there is binding precedent directly on point that
mandates a reversal. In People v. Perez, 65 N.Y.2d 154 (1985), the Court of Appeals
reversed a murder conviction where the People, as here, failed to tum over information
about an attempt to bribe a prosecution witness until after the defense, as here, had
unwittingly opened the door to this damaging area of testimony. Before trial, an
eyewitness told the prosecutor that the defendant's family had offered her a bribe not
to testify. The defendant's family, however, had told his attorney that the witness had
approached them and asked for a bribe.
On direct, as here, the prosecutor never asked about the bribe. Nor, as here, did
the People tum over records of conversations with the witness about the bribe, or
transcripts of recorded conversations the witness had with the defendant's family.
Unaware of these devastating documents, on cross-examination, as here, defense
counsel opened the door by asking the witness whether she had solicited money from
family members. She testified in response that it was the defendant's family who
36
offered her money and that she had told this to the prosecutor. rd. at 157. On redirect,
the prosecutor produced the withheld documents.
The Court of Appeals vacated the conviction. As the Court made clear, "in
order to serve their intended purpose, pretrial statements should be given to defense
counsel at a time when they can meaningfully assist in the preparation of the cross-
examination." rd. at 159 (emphasis added). The Court concluded that the production
of the material after the witness testified had substantially prejudiced the defense:
An attorney preparing for cross-examination must not only decide what
questions to ask, but what questions to avoid asking. The fairness
concept embodied in the Rosario rule cannot be said to have been
satisfied when pretrial statements revealing a potential trap for the
cross-examiner are fornis hed to defense counsel only after the trap has
sprung.
rd. (emphasis added) ..
Perez is dispositive. As in Perez, here, the People knew that the defense
believed and intended to prove that Y.R had approached a third party seeking money
for dropping the case. As in Perez, the People had documents reflecting that their
witness had reported that the third party had approached him, rather than the other way
around. And, as in Perez, the People waited until after the defense had opened the
door to spring their trap and question, on redirect, about the conversations that Y.R
allegedly had with Ashkenazi, as recorded in Litwin's withheld interview notes.
37
CPL 240. 7 5 was enacted after Perez but in no way affects its central holding.
That provision requires the defendant to show "that there is a reasonable possibility
that the non-disclosure materially contributed to the result of the trial or other
proceeding." This standard (reasonable possibility, not probability) "closely
resembles the federal standard for constitutional error - i.e. - "harmless beyond a
reasonable doubt." Preiser, Peter, Practice Commentaries to McKinneys CPL 240.75.
Applying this standard, in People v. Mitchell, 14 A.D.3d 579 (2d Dept. 2005), this
Court reversed a conviction where defense counsel relied on police reports describing
the perpetrator in pursuing a defense of misidentification. The People belatedly
produced reports whose description matched defendant more closely. This Court held
a mistrial should have been granted because the late disclosure substantially
prejudiced defense strategy.
The failure to timely produce Rosario material is reversible error if, as here, it
undermines the defense strategy. See. e.g .. Goins, 73 N.Y.2d at 991 (reversing where
prosecutor did not produce police officer's daily report that was consistent with his
testimony until after both sides had rested; re-cross of police office insufficient
because defense counsel "had been led to believe that a discrepancy existed
concerning the undercover officer's activities on the day ofthe sale, and counsel had
structured the defense, rested his case and prepared his summation on the basis of that
38
discrepancy"); People v. Thompson, 71 N.Y.2d 918, 920 (1988) (reversing where
defense strategy was to highlight inconsistencies between complainant's different
versions of event and People withheld, until re-cross, police notes memorializing an
account consistent with trial testimony, thus dealing defense strategy "a significant
blow"); People v. Mackey, 249 A.D.2d 329 (2d Dept. 1998) (reversing where delayed
production and court refused to strike testimony or give appropriate adverse inference
charge); People v. Jarrells, 190 A.D.2d 120, 123-24 (1st Dept. 1993) (reversing
because late production of police voucher after defense cross-examined police officers
"trapped defense counsel in an untenable position;" effect was to undermine
defendant's testimony and corroborate that of People's witnesses).
Here, the failure to turn over Litwin's notes of his interviews with Y.R was
inexcusable. There was only one investigating detective and the entire police file
consisted of five DD-5s and 30 pages of grand jury testimony of two witnesses.
(A354) Notes of two separate interviews where bribes and witness tampering were
discussed could not have been overlooked. IS Regardless of whether the prosecutor
18 Litwin testified that he "thought that [he] had turned over every piece of
paper in the case," but, on the first day of trial, "upon preparing for this trial," he
"looked through the paperwork" with the prosecutor, who indicated that she did not
have the notes of Y.R 's January 2009 conversations with Litwin. (A50 I) That is
when he "realized" that the notes had not been produced. (A501,504-05) The court
made no findings as to whether it had credited this highly implausible claim, which,
in any event, would not excuse the failure to produce the notes.
39
personally knew about the interviews, because they were in the possession of her
investigating officer, they were constructively in her possession and control. People
v. Ranghelle, 69 N.Y.2d 56,62 (1986), superseded in other respects by codification
ofCPL 240.75. Given the substantial prejudice, reversal is required.
B. The Brady Violation Constitutes Reversible Error
Withholding Litwin's notes also violated the People's constitutional obligation
to provide the defense with exculpatory material. Under Brady v. Mruyland, 373 U.S.
83 (1963), and its progeny, the prosecution's failure to turn over evidence that is both
favorable and material to the defense deprives the defendant of his right to due process
and entitles the defendant to a new trial. This is true regardless of the good faith of
the prosecutor. Stricklerv. Greene, 527 U.S. 263, 280-81 (1999).
The Brooklyn DA has an open discovery rule that presumes that the defense
has specifically requested prior statements ofthe complainant. (A408) When the
,
defense has made a specific discovery request, a new trial is required if there is a
"reasonable possibility" that the failure to disclose the material contributed to the
verdict. People v. Vilardi, 76 N.Y.2d 67, 77 (1990). The "reasonable possibility" rule
is a reformulation of the "seldom if ever excusable rule," and is designed to encourage
compliance with the People's obligations. rd. at 77. See also People v. Davis, 81
N.Y.2d 281,284,287 (1993); People v. Daly, 57 A.D.3d 914 (2d Dept. 2008), affd
40
on other grounds, 14 N.y'3d 848 (2010) (failure to tum over one set of interview
notes, including a slightly different description of the perpetrator, requires reversal). 19
Exculpatory evidence includes evidence that would alter how the defense
proceeds with its case. "Evidence which would lead to a different trial strategy is also
within the Brady rule." People v. Jackson, 154 Misc.2d 718, 730 (Kings Co. 1992),
affd, 198 A.D.2d 301 (2dDept. 1993). See also People v. Jackson, 168 Misc.2d 182,
185-86 (Bronx Co. 1995). Here, as defense counsel told the court, had he known that
Y.R. had told Litwin of his claim, whether or not true, that Rabbi Ashkenazi had
offered him money to drop the case, the defense would have employed an entirely
different trial strategy - he "wouldn't have opened the door, I wouldn't have called
him." (A412)
In addition, evidence that can be used to impeach a witness constitutes Brady
material. "When the 'reliability of a given witness may well be determinative of guilt
or innocence,' non-diSclosure of evidence affecting credibility falls within this general
rule." Giglio v. United States, 405 U.S. 150, 154 (1972), quoting Napue v. Illinois,
360 U.S. 264, 269 (1959). See also People v. Colon, 13 N.y'3d 343 (2009) (reversing
19 Under federal law, the standard for determining whether the undisclosed
evidence is material is whether there is a "reasonable probability that it would have
altered the outcome of the trial; that is, a "probability sufficient to undermine
confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985). That
standard is met, too.
41
where prosecutor failed to disclose full extent of assistance provided to key witness).
Reversal is mandated when, as here, the delay in disclosing impeachment material
deprives the defendant of "a fair opportunity to ... conduct an adequate investigation
of the facts." People v. Roberts, 203 AD.2d 600, 602 (2d Dept. 1994) (reversing
where prosecution "hinged on the credibility of a single eyewitness," and People
withheld a second eyewitness's conflicting report until eve oftrial); People v. Soto,
285 AD.2d 618 (2d Dept. 2001) (failure to disclose identities of two witnesses
"deprived the defimdant of a fair opportunity to conduct an investigation into this
information"); People v. Clausell, 182 AD.2d 132 (2d Dept. 1992) (reversing where
prosecutor failed to timely produce report containing a different description of the
seller than police officer's testimony and prosecution's case depended almost entirely
on the officer's credibility); Peoplev. Janota, 181 AD.2d 932 (3d Dept. 1992) (victim
claimed rape, defendant claimed consent; failure to turn over valuable police notes
required new trial because verdict depended on whether victim was believed).
Litwin's undisclosed notes constituted material impeachment evidence. They
refuted Y.R's denials of any interest in money. They showed that Y.R had spoken
with Kellner, who had made an offer of money and who had brought Y.R. to the home
of a "wealthy" man who wanted to help him. They reflected that Y.R. told Litwin that
he was going the next day to pick up $10,000. Had the defense been aware of this
42
infonnation before the trial, it could have conducted an independent investigation to
detennine whether Y.R. had accepted money from Kellner or any of his emissaries,
including this unidentified "wealthy man.,,20 As defense counsel represented, had he
known in January 2009 that Y.R. had told Litwin he was getting $10,000, he would
have had his private investigator see whether Y.R. was spending an unusual amount
of money around this time that could be explained by his acceptance of bribes. (A424-
26)
The trial court would not admit the notes themselves, thus depriving the jurors
of the chance to detennine for themselves what they meant. (A413-15) At the very
least, the defense should have been allowed to present the proper foundation for
admitting the detective's notes as a business record under CPLR 4518, or under some
other theory of admissibility. People v. Steward, 54 A.DJd 880, 882 (2d Dept. 2008).
The failure to produce the interview notes changed the entire dynamic of the
trial. Because the People withheld critical evidence, defense counsel chose a strategy
that irreparably prejudiced the defendant and deprived the defense ofa fair opportunity
to conduct an investigation that could have led to infonnation that undennined Y.R. 's
20 During the trial, defense counsel could not pursue the Kellner issue with
Y.R. because Kellner's son's trial had been severed in order to avoid spill-over
prejudice. Defense counsel could not risk opening the door to this harmful line of
inquiry by asking specific questions about Kellner.
43
credibility, on which the entire case hinged. The withheld notes, with their references
to Kellner, would have prompted a closer look at the Y.R.-Kellner connection and
could well have led the defense to pursue and establish the extortion plot that is the
subject of the pending indictment. The People dealt the defense a "significant blow"
that could not be remedied by bringing back Y.R. for more questioning. The
convictions must be reversed.
III. THE PROSECUTOR EXPLOITED THE WRONGDOING BY
IMPROPERLY QUESTIONING THE SOLE DEFENSE WITNESS,
WHOM THE DEFENSE WAS COMPELLED TO CALL BECAUSE OF
THE NON-DISCLOSURE OF THE NOTES, ABOUT STALE
ACCUSATIONS OF SEXUAL MOLESTATION WITHOUT SHOWING
THAT SHE HAD A GOOD FAITH BASIS FOR BELIEVING THOSE
ACCUSATIONS TO BE TRUE,. AND BY IMPROPERLY
"TESTIFYING" DURING SUMMATION THAT THE DEFENSE
WITNESS WAS AN ACCUSED CIDLD MOLESTER
Once Y.R. testified that Rabbi Ashkenazi had offered him money to drop the
case, and that he had told this to Litwin, the defense had to call Ashkenazi to deny
these charges. Defense counsel, during the two-day hearing on the Rosario and Brady
violations, made that clear:, "I am now compelled to call Mr. Ashkenazi. I don't have
a choice." (A412) Having already violated the defendant's rights by withholding
RosariolBrady material, the prosecution should have been scrupulous in ensuring that
the prejudice from its misconduct was minimized. Instead, the prosecutor deliberately
concealed that she had other undisclosed Litwin "notes," purportedly of interviews
44
with two friends ofY.R.' s who allegedly had told Litwin that Ashkenazi had sexually
molested them many years earlier. Had the defense known of these allegations it
would not have called Ashkenazi as a witness. In short, having already ambushed the
defense by withholding documents that, if disclosed, would have altered the defense
strategy and kept Ashkenazi out of the case entirely, the prosecutor capitalized on
these violations by once again hiding extraordinarily prejudicial information about
Ashkenazi that, if allowed into evidence, would destroy him as a defense witness.
The prosecutor throughout the hearing maintained her innocence in the matter
of the withheld Litwin notes. She represented that she only spoke with Y.R. about his
conversations with Ashkenazi on the morning the trial began, and it was only then that
she "had an opportunity" to speak with Litwin, who told her he "did recall a
conversation" with Y.R. about Ashkenazi. (A3 70-71, 377) This was, at best, a half-
truth: she omitted Litwin's purported interview with Y.R.'s two friends, and his
"notes" of their supposed allegations against Ashkenazi.
21
On cross-examination of Rabbi Ahskenazi, the prosecutor sprung her second
trap. She suddenly asked the following questions:
21 Y.R. testified that, after the two January, 2009 conversations with Litwin
about Ashkenazi, he saw Litwin "quite a few times" and Litwin "always" took notes
oftheir conversations. (A484-85) If Y.R .gave Litwin the names of his two friends,
Litwin should have had notes of their conversation. If such notes exist, they were
Rosario material, but no such notes were produced.
45
Q: Sir, do you know an individual by the name ofHD. some people in
the community call him B.C.D? Was he a student of yours?
A: No
Q: So he wasn't a student of yours at the Munkasc Yeshiva?
A: No.
Q: Do you know him?
A: Yes.
Q: Isn't it true in 2000 when H. D. was 15 years old that you touched
your knee to his penis and you touched your hand to his penis?
(A555) The defense immediately objected. (A555)
At a side bar, the court immediately defended the question as "prior bad acts."
When the court asked for the prosecutor's good faith basis, she reported that:
There were two witnesses who were interviewed by Detective Steve
Litwin. One is this HD. It's a student of this witness. He told
Detective Litwin that he was sexually abused by him on multiple .
instances inside the Munkasc Yeshiva. Because it was beyond the
statute of limitations, Detective Litwin was unable to bring a case.
There is a second individual by the name of Y.E. who made similar
allegations when he was a student of this witnessY
22 In fact, HD was not 15 years old in 2000. In connection with the Motion,
Litwin finally produced his notes which show that HD was 15 in 2002. Moreover,
both the prosecutor and Litwin have attested that HD was only 22 when he was
interviewed. (Gregory Aff. ~ 1 8 ; Litwin Aff. ~ 1 6 ) Thus, despite the prosecutor's
representations, charges involving HD were not barred by the statute oflimitations,
which allows the People five years from when the child turns eighteen to bring
charges involving sexual misconduct. CPL 30.l0(2)(t).
46
(A556) The prosecutor acknowledged that the two men were Y.R. 's friends. (A557)
She also said she had Litwin's notes. The defense pointed out that "just because he
. says it, doesn't mean it's true," and asked to see the notes; the prosecutor refused and
the court did not ask to review them. (A556-57)
Allegations ofthe sexual abuse of young teenagers are by their very nature
prejudicial, and were particularly prejudicial in this case, where the defendant was
charged with similar misconduct and the prosecutor argued that the witness was "a
friend ofthe defendant's," and implied that they were in league together. (A6l9-21)
Yet, despite the obvious prejudice, the court did not engage in any inquiry to
determine whether the prosecutor had a good faith, reasonable basis in fact for
believing the accusations were true. The court did not ask her when Litwin had
spoken with the two men, or whether he or anyone else had done anything to confinn
the alleged accusations.
23
Instead, the court quickly ruled that "this is a prior bad act,"
and even refused a defense request for a limiting instruction, saying it was covered in
the general instructions and that "this [was] no different than any other witness."
(A557-58)
23 To the contrary, Litwin visited Y.E, in the middle of the night, accompanied
by Kellner and Y.E. told Litwin that he had not been molested by Rabbi Ashkenazi.
(Motion, Dershowitz Aff. ~ 3 2 - 3 4 , Sealed Exh. D)
47
Thus, the prosecutor returned to questioning, first having the question about
H.D. read back, enhancing its importance. Although Ashkenazi denied the accusation
with, "never in my life" (A558), the prosecutor moved on to another allegation:
Q: Sir, do you know someone by the name ofY.E.?
A: Yes.
Q; And I believe people referred to him as Y.E.?
A. Yes.
Q: And you taught him as well?
A: Yes.
Q: And back in 1998 didn't you on multiple occasions inside a Yeshiva
in Williamsburg sexually molest Y.E. when he was just 13 years old.
You touched him on his penis your hand on multiple times and you put
your mouth on his penis; isn't that true?
A: No, I am ready to swear.
(A558-59) The prosecutor made it clear to the jury through her question alone that
this alleged conduct had been the subject of police investigation:
Q: Sir, are 10U aware that the only reason you weren't prosecuted for
these is that they happened too long ago?
(A559) An objection was sustained, but the damage was done. The question itself,
regardless of the answer or whether its premise was true, when asked by a prosecutor
who would presumably know if it was true, told the jury that a prosecution had been
48
contemplated. (A559) Yet it is highly unlikely that the prosecutor had a good faith
basis for this statement. The decision not to charge on statute oflimitations grounds
is a prosecutorial decision, not a police decision. But the prosecutor represented that
she did not know even about Ashkenazi until the morning of the trial. If someone else
in the DA's office had made that decision, it means someone in the DA's office was
aware of Ashkenazi and of Litwin 's investigation of him, which suggests that someone
should have been aware of Litwin's notes of his interview with Y.R. regarding
Ashkenazi - the notes that were withheld until after Y.R. had testified.
A defense witness may be cross-examined about an "immoral, vicious or
criminal act" if it reflects on his character or credibility, but the prosecutor may only
ask the questions "in good faith and upon a reasonable basis in fact." Prince,
Richardson, On Evidence, 6-406 at 389 (11th ed. 1995). A prosecutor may not
question a witness ab()ut an indictment or arrest, People v. Miller, 91 N.Y.2d 372, 380
(1998), because these are "mere accusation[s] and raise[] no presumption of guilt;"
they are "purely hearsay." People v. Morrison, 195 N.Y. 116,117 (1909). See, e.g ..
People v. Munquia, 23 A.DJd 583 (2d Dept. 2005); People v. Antonetty, 268 A.D.2d
254 (1 st Dept. 2000).
Questions about accusations improperly communicate to the jury that the
witness is guilty of the accused conduct. Here, based on "mere accusations," the
49
prosecutor improperly sought to foster an impression of guilt by asking Ashkenazi
whether the "only" reason he was not prosecuted was because the statute oflimitations
had run. That question implied that the prosecutor had enough evidence for an
indictment, but was frustrated by a technicality. Though the defense objection was
sustained, the prosecutor's overreaching tainted the cross-examination. Questions
alone can lend credence to an accusation of prior bad acts, despite the defendant's
denial:
A denial interposed to such a question may be, as a matter of law,
conclusive. Where, however, by innuendo or suggestion, attempt is
made to lead the jury to believe that the denial is not conclusive; where
questions are permitted which are calculated by suggestion of
misconduct to prejudice the jury regardless of the answer given, then
it may hardly be said that the error in permitting the questions is
harmless. ... The court may not close its eyes to result which are
intended to flow and do flow from the question itself.
People v. Malkin, 250 N.Y. 185, 197 (1928) (emphasis added). See also People v.
Simpson, 109 A.D.2d 461 (1st Dept. 1985); People v. Gottlieb, 130 A.D.2d 202 (1st
Dept. 1987).
Moreover, here,the court never required the prosecutor to establish she had a
"reasonable basis in fact" for believing that the accusations were true. It is not enough
for the prosecutor to believe that the accusations were made; she must also establish
that she has a "reasonable basis for believing the truth of things [she] was asking
50
about." Simpson, 109 AD.2d at 467, quoting People v. Alamo, 23 N.Y.2d 630, 633
(1969) (emphasis added). The court must "examine with painstaking care the factual
basis for any proposed cross-examination with regard to an uncharged crime."
Simpson, 109 A.D.2d at 471. See, e.g" People v. Liriano, 173 A.D.2d 489 (2d Dept.
1991) (reversing where no good faith basis in fact for asking defendant about prior
drug transaction); People v. Torriente, 131 AD.2d 793, 794 (2d Dept. 1987)
(reversing where prosecutor asked "misleading and prejudicial questions" about a
defense witness's alleged prior drug use); People v. Crawford, 256 AD.2d 141, 143
(1st Dept. 1998) (reversing where prosecutor asked about groundless accusations).
The prosecutor knew only that Y.R.' s friends had made accusations to Det.
Litwin. She provided no information demonstrating any efforts to confirm those
accusations, and the court refused to conduct any inquiry, let alone a "painstaking"
one. She provided no basis for representing that the failure to prosecute was based on
the statute oflimitations. She did not state that she had consulted with anyone in the
DA's office about the decision whether to prosecute. Yet she left the clear impression
that Rabbi Ashkenazi had escaped prosecution and conviction only because of
timing.
24
24 Even were this cross-examination theoretically permissible, when deciding
whether to allow highly prejudicial cross-examination of a defense witness, the court
must balance the probative value of the impeachment against the risk of unfair
51
Compounding the prejudice, the prosecutor improperly argued in summation:
Now, this man, Beryl Ashkenazi, I submit to you, ladies and gentlemen,
that he is an accused child molester.
(A620) When the defense objected, the court merely told the jury "you will recall the
evidence," although there was no evidence on this, only the prosecutor's question.
This comment, confusing at best, communicated to the jury that there was evidence
that Ashkenazi was a child mo lester. Not satisfied, the prosecutor went further, stating
an accusation as a proven fact:
I submit that he uses his relationship as a teacher to abuse boys;
(A620) This time the objection was sustained, but the damage was already done.
Prosecutors cannot strike foul blows, Bergerv. United States, 295 U.S. 78, 88 (1935),
or make statements that are unsupported by the evidence. People v. Riback, 13 N. Y.3 d
416 (2009). Knowing that Rabbi Ashkenazi denied the accusations, the prosecutor
overstepped all reasonable boundaries by in essence testifying - falsely to boot - to
matters not in evidence.
This case, resting on the slim thread of YR.' s testimony, demanded that the
prosecutor scrupulously avoid attempts to prejudice the jury to obtain a conviction that
prejudice. People v. Schwartzman, 24 N.Y2d 241, 244, 247, cert. denied, 396 U.S.
846 (1969). Here, despite the inherently inflammatory nature of these accusations,
the court never balanced the probative value of the accusations against the risk of
unfair prejudice.
52
might otherwise be beyond reach. Instead, the prosecutor sought to taint the sole
defense witness with unfounded, inflammatory accusations. The introduction of this
highly prejudicial line of questioning, coupled with the egregious misuse of the
questioning in summation, in this less than overwhelming case, was not hannless.
People v. Mendez, 22 A.D.3d 688 (2d Dept. 2005).
IV. THE SENTENCE OF 10%-32 YEARS - EIGHT TIMES THE
SENTENCE OFFERED DURING PLEA NEGOTIATIONS-EXCEEDS
THE MAXIMUM AND MINIMUM TERMS OF IMPRISONMENT
ALLOWED BY STATUTE AND MUST BE "DEEMED" TO BE 10-20
YEARS. THESENTENCE.CONSTITVTEDANVNLAWFULPENALTY
IMPOSED ON DEFENDANT FOR EXERCISING HIS
CONSTITUTIONAL RIGHT TO A JURY TRIAL AND SHOULD BE
VACATED. ALTERNATIVELY, THE SENTENCE SHOULD BE
MODIFIED IN THE INTEREST OF JUSTICE
Lebovits, a first time offender, received consecutive sentences of 1 %-4 years
on each of the eight counts of conviction. Lebovits faces 32 years in prison; at 59
years old, essentially a life sentence. This sentence exceeds the statutory maximum
and minimum and is eight times longerthan the total sentence the prosecutor, with the
court's approval, had agreed to as part of a discussed plea offer. (A691) Lebovits,
who has maintained his innocence, chose to reject that offer and exercise his state and
federal constitutional right to trial by jury.25 For this, he was penalized to an
25 The right to trial by jury is guaranteed by the Sixth Amendment, U.S.
Constitution, and by Article 1, 2, N.Y.S. Constitution.
53
extraordinary degree. His sentence violates the statute and is both unconstitutional
and unduly harsh. As a matter of law, it must be reduced to 10-20 years and then
should either be vacated on the law or modified in the interest of justice.
Prior to trial, the People offered Lebovits a deal: ifhe agreed to plead to one
count of an E felony - for all three pending cases - he would receive a total sentence
of 1 %-4 years. (A699) The court pointedly advised Lebovits that, were he to reject
the plea, "the district attorney after trial would have a right to request, if you were
convicted, that I will impose the maximum consecutive .... " (A699) Maintaining his
innocence, Lebovits rejected the offer and went to trial.
At sentencing, as warned, and over an objection on constitutional grounds
(A690-93), Lebovits was penalized for exercising that right. Despite Y.R.' s inability
to identify when or even how many alleged acts occurred - rendering arbitrary the
number of counts of conviction - and although no new evidence emerged during the
trial to alter the court's view ofthe severity ofthe offense, the court imposed sentences
of 1 %-4 years on each of the eight counts, to run consecutively. The People
aggressively sought this harsh sentence. Though Y.R. testified that Ashkenazi only
said he was speaking for the community and not on behalf of Lebovits, the People
argued that the most severe sentence was appropriate because there were "attempts
made to silence the victim and his family." (A672) The court held this against
54
Lebovits, insisting that he was a "prominent and wealthy member [ofthe Hasidic
community] with a significant and powerful following" and that his community
support reflected that he had ''power behind him." (A702-03, 706-07)
The court also stressed that Lebovits himselfhad been a victim of sexual abuse
when he was 11 years old, converting what should have been treated as a mitigating
factor into another reason for increasing the sentence. (A708) Ignoring Lebovits'
clean criminal history, the details provided of his difficult childhood, his many good
works, and the numerous letters in his support, the court imposed a sentence in excess
of the maximum permitted by law. (A710-11)
A defendant may appeal a sentence that is "invalid as a matter of law" or that
is "harsh or excessive." CPL 4S0JO(1). This Court may reverse a sentence that
"was unauthorized, illegally imposed or otherwise invalid as a matter of law,"
470.1S(4)(c), or may modify, in the interest of justice, a sentence that is "unduly
harsh or severe." CPL 470.1S(2)(c). The eight consecutive sentences for Class E
felonies resulting in a maximum sentence of 32 years exceed the maximum and
minimum sentences permitted by Penal Law 7 0.3 O. The sentence violates Lebovits'
right to a jury trial, is plainly unsupported by the evidence at trial, serves no
penalogical purpose, and should be vacated.
55
A. The Sentence Exceeds The StatutoIY Maximum and Minimum
The 10%-to-32-year sentence exceeds the statutory maximum and minimum
for Class E felonies. Penal Law 70.30(1)( e), provides, in pertinent part:
the aggregate maximum term of consecutive sentences, all of which are
indeterminate sentences .. .imposed for two or more crimes ... shall, if it
exceeds twenty years, be deemed to be twenty years .... Where. the
aggregate maximum term of two or more indeterminate consecutive
sentences is reduced by calculation made pursuant to his paragraph, the
aggregate minimum period of imprisonment, if it exceeds one-half of
the aggregate maximum term as so reduced, shall be deemed to be one-
half of the aggregate maximum term as so reduced.
Lebovits' statutory allowable maximum sentence is 20 years. His statutory allowable
minimum sentence is 10 years. Lebovits' sentence must be "deemed" to be 10 to 20
years. See People v. Moore, 61 N.Y.2d 575 (1984); People v. Pearce, 81 A.D.3d 856
(2d Dept. 2011); People v. Haque, 70 A.D.3d 967 (2d Dept. 2010), cert. denied, 131
S.Ct. 903 (2011).
B. The Sentence Constituted An Unconstitutional Penalty For Going to Trial
This Court has the power to reduce a sentence that appears to penalize the
defendant for exercising his right to trial by jury}6 As the Court has explained:
26 That the sentence imposed after trial is more than that offered during plea
negotiations does not alone constitute grounds for vacating or adjusting the sentence.
People v. Pena, 50 N.Y.2d 400, 412-13 (1980), cert. denied, 449 U.S. 1087 (1981);
People v. Garcia, 66 A.D.3d 699 (2d Dept. 2009). But, if a lengthier sentence is
imposed, and there is evidence of vindictiveness or other impropriety, it violates due
process. Alabama v. Smith, 490 U.S. 794 (1989) (rejecting a presumption of
56
A person may not, of course, be punished for doing what the law
allows him to do .... If a defendant refuses to plead guilty and goes to
trial, retaliation or vindictiveness may play no role in sentencing
following a conviction.
People v. Patterson, 106 A.D.2d 520, 521 (2d Dept. 1984)(reducing a sentence based
on disparity between plea offer and sentence) (citations omitted).
In People v. Williams, 46 A.D.2d 783, 784 (2d Dept. 1974), the defendant was
offered five years for a manslaughter plea but, after trial, was sentenced to 20 years.
This Court reduced his sentence to seven years: "the fact that appellant proceeded to
trial should not militate against him to the extent of having a sentence imposed greatly
disproportionate to the one originally conditionally offered." Likewise, in People v.
Cosme, 203 A.D.2d 375 (2d Dept. 1994), the defendant was offered 8-to-life, and, at
sentencing, 15-to-life, ifhe agreed to plead to other pending indictments. When he
refused, the court imposed a sentence of 25-to-life. This Court reduced the sentence
to l5-to-life, reasoning that "in view of the disparity between the sentence which the
court promised to dispose of all three cases, and the sentence which the court imposed
for the case at bar alone, it appears that the defendant was impermissibly penalized for
asserting his right to trial on his pending indictments." Id. at 376. See also People v.
Peterson, 126 A.D.2d 680 (2d Dept. 1987).
vindictiveness); Bordenkircher v. Hayes, 434 U.S. 357 (1978).
57
Other Courts, too, have reduced sentences that appear to be penalties for
exercising the right to trial, even in difficult, sex abuse cases. In People v. Morin, 192
A.D.2d 791,794 (3d Dept. 1993), for example, the defendant was convicted of many
counts of fIrst-degree sodomy involving young children. Before trial, he was offered
a sentence of3Yz-to-l0Yz years; after trial, he was sentenced to the maximum on each
count: 21-57 years. The Third Department, noting that "the trial court must consider
the individual circumstances of both the defendant and the crime," reduced the
sentence to ~ 9 years. Id. itt 794. See also People v. Riback, 57 A.DJd 1209 (3d Dept
2008), rev'd on other grounds, 13 N.y'3d 416 (2009) (reducing defendant-
neurologist's sentence from 52 to 20 years, though convicted of28 counts of abuse
of young boys, because of 40-year disparity between sentence imposed and sentence
offered during plea negotiations); People v. Morton, 288 A.D.2d 557, 559 (3d Dept.
2001) (sentencing court "may have placed undue weight upon defendant's ill-advised
decision to reject the very favorable plea bargain and proceed to trial"), cert. denied,
537 U.S. 860 (2002); People v. Brown, 70 A.D.2d 505 (lst Dept. 1979) (reducing
based on great disparity between plea-offer sentence and that imposed after verdict).
Here, nothing occurred between the fInal plea offer, just days before the trial,
and the trial and sentencing that could explain the extraordinary disparity in the
sentence offered and the sentence imposed. In evaluating whether a sentence is a
58
penalty for exercising the right to trial, the court should consider whether the judge has
obtained a "fuller appreciation of the nature and extent of the crimes charged,"
whether the defendant's conduct during the trial has given the judge "insights into his
moral character and suitability for rehabilitation," and whether the factors that
militated towards leniency before trial still exist. Alabama v. Smith, 490 U.S. 794, 801
(1989). Here, the gross disparity in the sentence can only be explained by Lebovits'
decision to exercise his right to trial by jury. That is unlawful.
C. The Sentence is Unduly Harsh and Excessive
In any event, this unduly harsh and excessive sentence should be modified in
the interest of justice. Even if legally sufficient, the evidence was very weak. Y.R.
had no idea when the alleged acts took place, and why Lebovits was charged with one
act per month remains a mystery. Though Y.R. did not know the date of any alleged
act, Lebovits was sentenced to an additional 1 %-to-4 years for an act that allegedly
took place between February 1 and February 22,2005 -the cut-off date for the crime
being February 22nd .. Likewise, though Y.R. testified that the acts always took place
after school, and school was not in session during September, the month ofthe Jewish
holidays, Lebovits was separately sentenced for an act allegedly occurring in
September,2004.
59
This is a virtual life sentence. It is unlikely that, as a sex offender, Lebovits
will be granted a first parole after serving the minimum of 10% years. Yet the
harshness of the sentence does not reflect the gravity of the offense. Lebovits was
convicted of only Class E felonies and the acts he allegedly committed constituted a
crime only because Y.R., just shy of 17, was "presumed" incapable of giving
consentY Nor are consecutive sentences for each of the alleged acts reasonable or
justified. See.e g .. People v. Foss, 48 AD.3d 1219 (4th Dept. 2008) (modifying
consecutive sentences for each count of sexual abuse of 11 year old victims who were
unsure of when acts took place to run concurrently); People v. Joye, 198 AD.2d 21
(1 st Dept. 1993) (reducing consecutive sentences for rape and sexual abuse).
There are other factors militating in favor of modification of this extreme
sentence. Kellner's extortion plot depended on Y.R. alleging multiple felonies so that
Lebovits could be threatened with a long sentence. The BradylRosario violations
impacted adversely on the defense, and the prosecutor capitalized on the violations
during the summation to effectively destroy Lebovits' only witness - a witness that
would never have been called but for those violations. The trial court, in imposing this
excessive sentence, commented that the jury disbelieved Ashkenazi. (A705) The
2
7
There is evidence suggesting that Y.R. may have worked as a male prostitute.
(Motion, Dershowitz Aff. IJ15, 20, 26, Sealed Exh. H) Patronizing a prostitute who
is over the age of fourteen is only a Class A misdemeanor. Penal Law 230.04.
60
prosecutor should not be rewarded for ambushing the defense and then improperly
destroying the defense witness.
Finally, the sentence serves no penalogical purpose. Lebovits is nearly 60
years old. He has no criminal history. His age and background suggest he is capable
of rehabilitation. People v. Stuart, 137A.D.2d 637 (2dDept. 1988)(reducing sentence
of 66 year old first time offender); People v. Norton, 90 A.D.2d 557 (2d Dept. 1982)
(reducing sentence for robbery from 5-15 to 2-6 where defendant was 43, had no prior
convictions, and no injury occurred).
Lebovits' family and community members have recounted his many good
works and the positive impact he has had on their lives. Given the perfunctory nature
ofY.R. 's testimony, and the fact that nothing emerged during the trial that should have
appreciably altered the judge's impression of the defendant's ability to be
rehabilitated, this excessive sentence should not be allowed to stand.
61
CONCLUSION
For the foregoing reasons, the convictions should be reversed and/or vacated;
in the alternative, the sentence must be reduced because it is contrary to law, and
should be vacated and or modified in the interest of justice.
Alan. M. Dershowitz
Of Counsel
Dated: August 3,2011
Respectfully submitted,
~ ~ -
Nathan Z. Dershowitz
Amy Adelson
DERSHOWITZ, EIGER & ADELSON, P.C.
220 Fifth Avenue, Suite 300
New York, NY 10001
(212) 889-4009
Attorneys for Defendant-Appellant
Baruch Lebovits
62
CERTIFICATE OF COMPLIANCE
PURSUANT TO 22 NYCRR 670.10.3(f)
By this Court's letter dated August 4,2011, Defendant-Appellant Baruch
Lebovits' application to file an oversized brief of 14,927 words was granted.
The foregoing brief was prepared on a computer in proportionally spaced
typeface using WordPerfect 11, Times New Roman, point size 14, double line
spacmg.
The total number of words in the brief, inclusive of point headings and
footnotes and exc1.usive of pages containing the table of contents, table of citations,
proof of service, certificate of compliance, or any authorized addendum containing
statutes, rules, regulations, etc., is 14,927.