Appeals Court Orders New Trial for Brooklyn Rabbi

Reuters
April 30, 2012

http://newsandinsight.thomsonreuters.com/Legal/News/2012/04_-_April/Appeals_court_orders_new_trial_for_Brooklyn_rabbi/

NEW YORK, April 27 (Reuters) - A Brooklyn rabbi convicted of sex abuse will get a new trial, after a New York appeals court ruled that prosecutors failed to promptly hand over a detective's notes about an alleged bribery attempt.

The Appellate Division, Second Department, held that Rabbi Baruch Lebovits was "substantially prejudice(d)" by prosecutors' mid-trial disclosure of a detective's handwritten notes detailing a conversation in which the alleged sex-abuse victim said he was offered a bribe by a key defense witness in exchange for his silence.

"The untimely disclosure of the interview notes precluded the defense from fully and adequately preparing for cross-examination and set a trap for the defendant which had already sprung at the time the notes were finally furnished," the court wrote in a unanimous order released last week.

Lebovits was charged in 2008 with 10 separate counts of criminal sexual act in the third degree. The alleged victim, then 16 years old, said he engaged in "oral sexual conduct" with the rabbi on 10 separate occasions between May 2004, and February 2005, according to the ruling.

Lebovits contended that the alleged victim was a drug addict who made the accusations to extort money from Lebovits and his family. Lebovits' defense attorney planned to call another rabbi to testify that the alleged victim had approached him months before the trial and admitted the allegations were not true, according to the ruling.

But during a subsequent interview with a detective, the alleged victim said he had been contacted by the rabbi and was offered money in exchange for dropping the charges, the ruling said.

Prosecutors only gave the detective's notes to the defense after the prosecution raised the alleged bribery attempt during a redirect examination of the alleged victim, the ruling said.

Once the notes came to light, the defense moved for a mistrial.

Kings County Supreme Court Justice Patricia DiMango denied the motion, but allowed the defense to recall the witness and allowed additional cross-examination regarding the notes.

'EXTORTION PLOT'

Lebovits was ultimately convicted of eight of the 10 counts and was sentenced to 10 2/3-32 years in 2010.

The Third Department held that the prosecutors' failure to turn the detective's notes over violated Lebovits' right to examine a witness' pre-trial statements, a right recognized by the 1961 Court of Appeals ruling People v. Rosario, the court said.

"The people must turn over to the defense any prior statements by a witness which relate to the subject matter of that witness's testimony for use on cross-examination," the court wrote.

Lebovits' attorney, Nathan Dershowitz, said he was pleased with the appellate court's ruling.

"They know now the witness made misstatements, maybe intentionally, and that this was all part of an extortion plot," Dershowitz said.

A spokesman for the Brooklyn District Attorney's office, Jerry Schmetterer, said " We are prepared to retry the case."

The case is People v. Lebovits, in the Supreme Court of the State of New York, Appellate Division: Second Department, no. 2010-3777.

For the Brooklyn DA: Leonard Joblove and Anthea Bruffee.

For Lebovits: Nathan Dershowitz, Amy Adelson and Alan Dershowitz at Dershowitz Eiger & Adelson.

(Reporting by Jessica Dye)