SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS, CRIMINAL TERM-PART 15

-----------------------------------------------------------------------)( PEOPLE OF THE STATE OF NEW YORK

Against BARUCH LEBOVITS, Defendant-Appellant

Index No.: 11393/08 (Kings County) AFFIRMATION OF NATHAN Z. DERSHOWITZ IN SUPPORT OF 440 MOTION

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NATHAN Z. DERSHOWITZ, being duly licensed to practice law before the courts of this State, hereby affinns under penalty of perjury and pursuant to CPLR 2106 as follows: I. I am one of the attorneys for the above-named defendant, Baruch Lebovits, and

make this affmnation in support of a motion to vacate the judgment of conviction pursuant to CPL 440.lO(l)(b),(c),(d),(f),(g) and (h). I submit this affinnation on infonnation and belief, based on the attached affidavits and other infonnation provided to me by persons referred to in this affinnation. This motion is based on newly-discovered evidence that has exposed a disgraceful attempt to pervert the criminal justice system and to extort money from the family of the defendant Baruch Lebovits by threatening him with felony molestation charges, including those lodged by the complainant in this case, Y.R.1 Very recently, the Kings County District

Attorney's office has indicted the principal wrongdoer, Samuel Kellner, the father of another ,complainant whose charges against Lebovits have already been dismissed.
Introduction

2.

As demonstrated below and in the Memorandum of Law, the newly-discovered

evidence requires that these convictions be vacated. The People believe that Kellner engaged in

I Because of the nature of the charges, we have used initials in these papers so as not to identify the persons involved. See Civil Rights Law 50-b.

illegal activities, including attempted extortion and suborning perjury. It is fundamentally wrong for convictions to stand when the jury that convicted the defendant did not know the defendant was himself the victim of an extortion plot in connection with the very charges that that the jury is considering. Worse still, the complainant was "recruited" as part of that extortion plot,

received money to testifY against Lebovits, and denied it. If a witness has been paid money for his testimony, there are serious questions about whether the testimony should be allowed, or, if the impropriety is discovered later, should be stricken. Certainly, the jury should be instructed to scrutinize such "bought" testimony with care. Undoubtedly, in this case, had the jury known the facts about the extortion plot, it would have had an impact on its evaluation of the complainant's testimony. 3. The newly discovered evidence casts serious doubts on the reliability and

accuracy of the verdict. The indictment of Kellner raises questions both as to whether this conviction served the ends of justice and/or the appearance of justice. 4. At a minimum, the extensive evidence provided by defendant in this motion,

including sworn affidavits substantiating the essential facts, together with the indictment of Kellner, amply demonstrates the right to an evidentiary hearing pursuant to CPL 440JO(5).

History
5. On March 8, 2010, Mr. Lebovits was convicted of eight counts of a 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 1-113 to 4 years on each count, to be served consecutively, for a total term of imprisonment of 10-2/3 to 32 years. 6. On April 12,2011, pursuant to CPL 460.50, bail pending appeal was granted by

Justice John M. Leventhal of the Supreme Court of the State of New York, Appellate Decision,

Second Department. A Decision and Order was entered on April 15, 2011. (Exhibit A) A draft of Lebovits' proposed Brief to the Second Department was provided to Justice Leventhal and to the People. Justice Leventhal stated that he had read and reread the proposed Brief and observed that the Kellner indictment certainly had "muddied the waters." Justice Leventhal directed that the Brief be filed within 120 days, allowing time for this CPL 440 motion to be heard. Obviously, if the motion is granted, filing the Brief itself will no longer be necessary. 7. Baruch Lebovits was originally charged with a misdemeanor involving illegal

sexual acts with the son of Samuel Kellner. Thereafter two indictments were returned. One was based on allegations made by M.T. The second indictment related to Y.R., the complainant in the instant case. Motions for a severance were granted. I am informed and believe that the case brought by M.T. was considered trial-ready, but that M.T. was reluctant to proceed. Only Y.R.'s charges went to trial. 8. Since the trial, new information has emerged that establishes that Samuel Kellner,

with the knowledge and support of Y.R., orchestrated the proceedings against Lebovits as part of an ongoing extortion scheme. I am informed and belief that, among others, Meyer Lebovits, the defendant's adult son, was called by the District Attorney's office to appear before a grand jury to testifY to Kellner's extortion efforts in connection with all three complainants. On April 11, The

2001, Kellner was indicted on ten felony counts stemming from this illegal activity.

conspiracy count alleges that Kellner "had the ability to control the cooperation and the content

of the testimony" of the complainants against Lebovits, and that, in furtherance of the conspiracy,
Kellner, among other misdeeds, using emissaries, tried to extort money from the Lebovits family by promising that, if payments were made, the complaining witnesses in the "two pending" indictments "would not testify against" Lebovits. Kellner has also been charged with five counts

of attempted grand larceny by extortion; and with several counts of peljury and suborning perjury. The indictment is attached as Exhibit B. 9. The newly discovered evidence also shows that Y.R. was a knowing participant in

the extortion and even sought to cut Kellner out from the plot and to use other intermediaries to extort money from the Lebovits family. 10. As detailed below, after the trial, M.T. admitted that he proceeded with his claim

against Lebovits because Kellner promised to, and did, pay him money. He also indicated that Y.R. told him that Kellner "gave money to everyone." Y.R. told others that he proceeded with the case because he too received money from Kellner. An important part of the extortion plot was that Kellner made clear to Y.R. that the allegations needed to amount to a felony, not just a misdemeanor. 11. This newly-discovered information was initially provided to the defendant's

family and counsel, and also to the Brooklyn District Attorney's office, which indicated an interest in pursuing an investigation. So as not to undermine that investigation, Lebovits

postponed filing a CPL 440.l 0 motion while the investigation was continuing. In November, 2010, the Brooklyn District Attorney's office indicted another individual, Simon Taub, for attempted extortion of the Lebovits family by threatening to file false molestation charges against Meyer Lebovits. (Exhibit C) The investigation continued, and, on April 11, 20 11, the District Attorney indicted Kellner, the impetus for the entire case against Lebovits. following day, Justice Leventhal granted Lebovits bail pending appeal.
The New Information

The

12.

This motion raises two separate areas of new information. First, new information

confirms that Y.R., a troubled young man, desperately in need of money, was "recruited" by

Kellner, and that his testimony that Lebovits molested him once a month for ten months before he turned seventeen was induced by Kellner's promises that he would get paid if he pursued felony allegations of sexual molestation against Lebovits. Y.R.'s charges were part of a broader scam to extort money from the Lebovits family, a scam that included the charges brought by M.T., which M.T. has conceded were false. The M.T. charges have been dismissed, as have the misdemeanor charges relating to Kellner's son. 13. Second, new information demonstrates that critical representations made by the

prosecutor to the Court about the only defense witness, Rabbi Ashkenazi, were untrue. After the trial, evidence emerged regarding actions taken during the trial by Detective Steven Litwin, the detective who investigated all of the Lebovits-related cases. In particular, we learned that, at 2:00 a.m. on March 4,2010, Det. Litwin visited the home ofY.E., seeking to ascertain whether Y.E. had been sexually molested by Rabbi Beryl Ashkenazi, a prospective defense witness. As the prosecutor knew, or at least her agent knew, Y.E. denied that he had been molested. (Exhibit D)2 Nonetheless, a few days later, the prosecutor represented to the Court that Y.E. had made such allegations. (Tr. 451-52, attached as Exhibit E) 3 14. When Detective Litwin made his middle-of the-night visit to the Y.E. home, he

was accompanied by none other than Samuel Kellner - the now-indicted extortionist. As set

Because the exhibits contain names of alleged victims that may not be permitted to be made public, and also because of requests by most, ifnot all, of the witnesses, Exhibits D, E, F, G, H, I, J, K, L, M and N will be submitted to the Court and the District Attorney's office, but will not be filed with this affidavit. A copy marked "sealed" will be provided to the Court for subsequent filing under seal if the Court views that as appropriate.
2
3

"Tr." refers to the transcript of the trial in this matter.

forth in paragraph 31 below, Kellner apparently also offered payments to Y.E.'s family if they cooperated with him.4

A;

Newly discovered evidence demonstrates that Kellner attempted extortion and suborned perjury and that Y.R. 's testimony was false
15. New evidence establishes at least two schemes to suborn perjury, bribe

complainants and witnesses, and create false charges in order to extort money from the Lebovits family. This evidence has resulted in two indictments, including the ten-count felony indictment against Kellner, charging him with conspiracy, attempted extortion, peljury and suborning perjury. Based on tape recordings and on conversations with Y.R.'s friends, the defense is prepared to establish at a hearing that Y.R. has told people that he was a male prostitute, and that Y.R. was a knowing participant in the extortion plot and testified that he was the victim of recurring felonies because Kellner convinced him that he would get paid for so testifying. Thus far, the evidence consists of the following: 16. the following: I was approached at my office by a man named Mr. Kellner, who wanted me to negotiate with the Lebovits family to ensure that the charges against Baruch Lebovits never went to court and "all went away." Mr. Kellner stated that he "controlled all of these cases." On or about July 15,2010, a witness ("Witness A") executed an affidavit, stating

Mr. Kellner stated that "only a misdemeanor happened" regarding

sexual activity.

4 I am informed and believe that Rabbi Nauchem Rosenberg also accompanied De!. Litwin to the Y.E. home. He is a "blogger" who has made numerous allegations of sexual abuse against many different people within the community, including Lebovits and his family, and recently vowed to run District Attorney Hynes out of office, claiming, among other things, that the District Attorney is corrupt and took bribes. Rosenberg's blog is accessible online at: http://nochernrosenberg.blogspot.comland his claims against D.A. Hynes at: http://www.youtube.comlprofile?user=rabbimosenberg&view=videos.

When asked by me why he was pursuing this case, Mr. Kellner stated, "Let them pay. Baruch doesn't have money but his son has money. I need to get money. I am not making a living. I have to get this money." (Exhibit F) 17. Upon information and belief, in or about August, 2010, Witness A was

interviewed by the Brooklyn District Attorney's office, and confirmed and expanded upon his affidavit. 18. On or about July 22, 2010, M.T., one of the complainants whose case has been

dismissed, executed an affidavit, stating the following: Sam Kellner approached me at the synagogue and said "I have a job for you." Mr. Kellner gave me about $400 or $500 and said "I should say yes if someone ask me if I was molested." Mr. Kellner instructed me to say "Baruch Lebovits raped me" on a regular basis from the time I was 12 until I was 16 years old. I testified two times that Baruch Lebovits raped me by putting his penis in my anus, but Baruch Lebovits never molested me. Mr. Kellner gave me a total of approximately $10,000. I don't know why I did what I did but Sam Kellner "brainwashed me" and I "desperately needed the money." I saw [Y.R.] last night, July 21, 2010, and he said "Kellner gave money to everyone and he (Kellner) is going to get in trouble." (Exhibit G) 19. Upon information and belief, on or about September 15, 2010, M.T. met with

representatives from the Brooklyn District Attorney's office and confirmed and elaborated upon what was reflected in his affidavit, and subsequently testified before the grand jury. 20. Upon information and belief, on or about June 22, 2010, a witness ("Witness B"),

a friend ofY.R.'s, executed an affidavit which stated, inter alia, the following:

I met [Y.R.] in the summer of 2009, right before [Y.R.] was expected to testify in a court proceeding. [Y.R.] did not want to testify. He was very stressed out about the Lebovits court proceedings. The trial did not take place at that time [Y.R.] was "desperate" and "suicidal" when I met him. He told me he was robbing charity boxes and working as a male prostitute to get drug money. He said he was going to die if he did not get money for his drug habit. Y.R. said he had "numerous relationships" where he had sex for money which went back many years well before he met Baruch Lebovits. [Y.R.] said he had a "guilty conscience" about making a case against Baruch Lebovits. Community pressure from "powerful people" was forcing Y.R .. to go forward with the complaint. He wanted me to get involved. He said he had picked up bigger money from ShIoime [Samuel] Aaron Kellner and Mark Appel. He said Appel bought him a computer and in the past Appel gave him bigger money.

***
He told me that he proceeded with the case because he received these payments. [Y.R.] asked me to contact the Lebovits family to ask them to pay him not to proceed. He asked me to get involved because he did not trust Kellner and was afraid Kellner would keep all the money. I did not do so because I did not want to get involved. He said he was going after Baruch Lebovits because his son has money. He said he will not proceed with the case because the Lebovits will pay him. When he did not get money from Lebovits, he said he was angry and was going to proceed. (Exhibit H) 21. Upon information and belief, on or about November 8, 2010, and on other

occasions thereafter, Witness B was interviewed by the Brooklyn District Attorney's office and confirmed what is contained in his affidavit.

22.

Further, upon information and belief, one of the witnesses made tapes of

conversations with Y.R., some openly and some surreptitiously, and he described the substance of those tapes to the Brooklyn District Attorney's office. As detailed in the accompanying affidavit of Alan M. Dershowitz, who is acting as "of counsel" on this case, and who listened to the tapes, those tapes confirm that Y.R. believes that Lebovits was sentenced to jail as part of an extortion plot-in Y.R.'s words, "a man is sitting in jail because someone had a premeditated

plan not put him away but to make money." (Alan Dershowitz Aff.
23.

3, Exh.l)

The extortion scheme did not end with the Lebovits conviction. On at least three

occasions after Baruch Lebovits was convicted, Simon Taub, who had participated in Kellner's efforts to extort money in connection with Y.R.' s charges, again tried to extort money from the Lebovits family, this time by threatening to bring child molestation charges against Meyer Lebovits. Upon information and belief, Taub had initially spoken with Baruch Lebovits on behalf of Kellner in an attempt to extort money. When that extortion plot failed, after the

Lebovits conviction, Taub spoke to Meyer and Chaim Lebovits, another of Baruch's adult sons, and told them that if their father had complied with Kellner's earlier demands, he would not be facing jail time. Thereafter, conversations with Taub were recorded by the Brooklyn District Attorney's office with the consent of Chaim Lebovits. 24. Both Meyer and Chaim had conversations with Taub in connection with the postThe Lebovits sons recorded these conversations. (Exhibit I:

conviction extortion efforts.

transcript of 4/21/10 conversation between Taub and Meyer Lebovits; Exhibit J: transcript of
4/2311 0 conversation between Taub and Meyer Lebovits; Exhibit K: transcript of 4/3011 0

conversation between Taub and Chaim Lebovits)

25.

During these conversations, Taub sought to negotiate payments from Meyer and

Chaim in order for Taub not to go to the District Attorney's office with false allegations of molestation, this time against Meyer. (Exhibit J, p.l) Taub claimed that if the matter was settled with him "there will be no more Kelner [sic], there will be no Nauchum Rosenberg." (Exhibit J, pp. 5, 7, 8, 10; Exhibit K, pp. 4, 6, 8, 9, 11) Taub wanted $25,000 in cash within a few days, and an additional amount of somewhere between $100,000 and $400,000 later. (Exhibit J, pp. 810) During the conversation with Chaim, Taub indicated his past efforts to settle Baruch As noted, Taub was arrested and

Lebovits' case for money. (Exhibit K, p. 2; Exhibit J, p. 2)

indicted after the Lebovits brothers contacted the District Attorney's office about the extortion attempts. 26. Attached as Exhibit L is an affidavit executed by Robert E. Mladinich, a private

investigator hired by trial attorney and co-counsel Arthur L. Aidala, summarizing interviews he conducted with additional people who claimed to have relevant information, but who were either unwilling to sign affidavits and/or apprehensive about being interviewed by personnel of the Brooklyn's District Attorney's office. In his affidavit, Mladinich states he spoke, inter alia, to: (1) Witness C, who reported that Kellner was seeking to extort money from the Lebovits family, and who had personal knowledge that Y.R. was working as a male prostitute and proceeded with the case because of pressure from Kellner; (2) Witness D, who reported on his knowledge regarding Kellner's efforts to extort money from the Lebovits family; (3) Witness E, who confirmed that Y.R. was a male prostitute and had been paid by Kellner to proceed with his case against Lebovits, and that Kellner was seeking to extort money from the Lebovits family; and (4) Witness F, who has information relating to Kellner's extortion efforts vis-a-vis the Lebovits

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family. I am informed and believe that, since this time, Witnesses E and F have spoken with the District Attorney's office. 27. In addition, several other young men from the community have spoken to me,

and, upon information and belief, Mr. Aidala, and have provided exculpatory information. These young men are unwilling to provide affidavits or speak to the Brooklyn District Attorney's office. However, if an evidentiary hearing is held, as we believe is required, these individuals will be subject to subpoena power and, I believe, will testifY to matters that further establish the wrongful nature of these couvictions 28. During the trial, after it was revealed that Det. Litwin had withheld notes of

conversations he had with Y.R. about Rabbi Ashkenazi and about Kellner, Mr. Aidala told the Court that, though had had always suspected that "money" was a "part" of this case, had this information been timely disclosed, his strategy would have been different and he would have conducted a more thorough investigation into whether there were efforts to tamper with witnesses, or engage in other crimes. (Tr. 247-57) This newly discovered evidence confirms trial counsel's suspicions; confirms that Y.R. perjured himself at trial when he testified that he never sought money or was interested in obtaining money from the Lebovits family; and confirms that Kellner recruited Y.R. and sought to extort money from the Lebovits family. As discussed in the accompanying Memorandum of Law, these are grounds for vacating a conviction under CPLR 440. At a minimum, pursuant to CPLR 440.30, a hearing is required. 29. The need for an evidentiary hearing is even greater given the suspect relationship

between Det. Litwin and Kellner, as illustrated by: (1) Det. Litwin's knowing that Kellner was trying to secure money for Y.R., as demonstrated by Litwin's notes, belatedly produced, of his January, 2009 conversations with Y.R., (Exhibit M), but willfully refusing, or at least, failing to

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investigate, whether Kellner was engaged in illegal activities; (2) Det. Litwin bringing Kellner with him to Y.E's home at 2:00 a.m., ostensibly to confirm that Y.E. was "molested" by Rabbi Ashkenazi.
B. Newly discovered information demonstrates that the prosecutor misled the court

30.

During the trial, defense counsel asked Y.R. a single question about whether he

knew "Beryl Ashkenazi." The prosecutor, on re-direct, asked Y.R. additional questions designed to elicit testimony that Rabbi Ashkenazi had offered Y.R. money to drop the case against Lebovits. Y.R. blurted out that Det. Litwin had notes about his talks with Rabbi Ashkenazi notes which had not been turned over to the defense. After those notes were belatedly produced, the court allowed the defense to recall Y.R. to ask him about his conversations with Rabbi Ashkenazi. 31. Because of Y.R.'s testimony, the defense had no choice but to put Rabbi

Ashkenazi on the stand. During cross-examination, without prior warning, the prosecutor asked Rabbi Ashkenazi whether he had molested a fifteen year-old boy. The defense immediately objected, and, at a side bar, the prosecutor represented she had a good faith basis for her question: brandishing what she identified as "notes" of De!. Litwin, she claimed that two men, both friends of Rubenstein, one of whom was Y.E., had told Litwin they were sexually abused by Rabbi Ashkenazi many years earlier. She further represented to the Court that no charges had been brought due to statute of limitations constraints. (Tr. 450-54, attached as Exhibit E) 32. That, apparently, was not true. Since the trial, the defense has discovered that,

during the trial, and before the prosecutor made her representation to the court, Y.E. had denied that he was molested by Ashkenazi. In an affidavit, Y.E. has stated, as follows: On Thursday, March 4,2010 at 2:00 AM, De!. Litwin, along with Mr. Kellner and Mr. Rosenberg, came to my home. De!. Litwin 12

sought to have me file a police report wherein I would allege that I was molested by Berel Ashkanazi. I advised Det. Litwin that Mr. Ashkanazi had not molested me. (Exhibit D) 33. Upon information and belief, on or about September 1, 2010, Y.E. provided

sworn statements to the Brooklyn District Attorney's office and elaborated on the above written statement, including stating that Kellner approached him sometime in 2007 and asked him if he knew anything about Rabbi Beryl Ashkenazi that would be helpful to Kellner. 34. Upon information and belief, Y.E.' s parents also met with the Brooklyn District

Attorney's office and confirmed that Kellner was with Det. Litwin at 2:00 a.m. on March 4,2010 and insisted on speaking to Y.E. alone. Kellner told them that if they cooperated, in the morning, they would get back the $12,000 they had paid out to cover for a theft committed by Y.R. and their son. Besides the cash, Kellner also said he would get Y.E. into a drug rehabilitation

program and get him a job for his cooperation. 35. On March 8, 2010, four days after Y.E. denied that he was ever molested by

Rabbi Ashkenazi, the prosecutor made her representation to this Court. Based on this representation, the Court allowed the inquiry. The prosecutor never advised the Court that Det.

Litwin had reached out to YE. afew days earlier and that YE. had denied the molestation claim.
36. Despite our requests to see a copy of Litwin's purported "notes," the prosecutor

has refused to turn them over to us. (Exhibit N) 37. Although Rabbi Ashkenazi vehemently denied the accusations, in summation, the

prosecutor argued that Rabbi Ashkenazi "is an accused child molester" and "uses his relationship as a teacher to abuse boys." (Ir. 453-55,515) 38. Ihis newly disclosed information establishes that the prosecutor, or Det. Litwin

acting on her behalf, defrauded the Court either by an act of commission or omission in 13

misrepresenting the facts relating to Y.E..

As set forth more fully in the accompanying

Memorandum of Law, this requires vacatur of the judgment pursuant to CPL 440.l O(l)(b). This information further establishes that the prosecutor "adduced" "material evidence" at trial suggesting that Rabbi Ashkenazi had sexually abused Y.E., but knew or Detective Litwin acting on her behalf knew that this "evidence" was false, in violation of CPL 440.1 0(1)(c): Had the truth been conveyed to the Court, it is unlikely that this line of inquiry would have been allowed, and the evidence relating to Rabbi Ashkenazi and Y.R. would have been viewed differently by the jury. The newly discovered information requires a reversal pursuant to CPL 440.l 0(1 )(), and vacatur of the conviction under CPL 440.l0(1)(d)(g) and (h). 39. Finally, at a minimum, an evidentiary hearing is required pursuant to CPL

440.30(5) requiring both production of the alleged Litwin notes, and the testimony of the prosecutor and/or Det. Litwin to explain the inconsistency between Y.E.'s affidavit stating that he told DeL Litwin that he was not molested by Rabbi Ashkenazi, and the prosecutor's representation that Litwin had "confirmed" the allegations of molestation.

C. Conclusion
40. Even if Y.R.'s testimony was truthful, a conviction resulting from a failed

extortion plot cannot be allowed to stand. It undermines the basis goals and objectives of the criminal justice system. But there are serious doubts as t6 the truthfulness of Y.R.' s testimony that recurring felonies were committed against him by the defendant. Since Y.R. was the sole witness against the defendant, the conviction must be vacated. Moreover, whether the District Attorney's office, through Det. Litwin, knowingly aided Kellner's extortion plot, or consciously avoided knowing the true facts about Kellner's illegal activities, the role of the People in this case further tainted this conviction. And finally, when prosecutors and/or police officers mislead

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judges to secure a vital ruling, as happened here, the system is further subverted. That type of deception cannot be tolerated. The CPL 440.l 0 motion should be granted, or, in the alternative,
an evidentiary hearing be ordered.

Dated: New York, New York May 4, 2011

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