"the Luckiest Pedophile in New York"

By Hella Winston
Jewish Week
October 6, 2014

http://www.thejewishweek.com/news/new-york/questions-over-child-molesters-early-release

A judge’s apparent misunderstanding of correction law caused a notorious chasidic child molester to get out of jail at least eight months earlier than the judge intended when he sentenced him — despite being informed of the mistake, The Jewish Week has learned.

In July, Brooklyn Supreme Court Judge Mark R. Dwyer imposed a two-year sentence on Lebovits, who at the time had pleaded guilty to eight felony counts of sexual abuse. Lebovits was released early from jail last week “for good behavior.” The Brooklyn district attorney had opposed the sentence, having sought two-to-six-years for Lebovits.

Lebovits’ years-long case, and the way it — and the related case of Sam Kellner — was handled by prosecutors, became political fodder in the race for Brooklyn district attorney between the longtime incumbent, Charles Hynes, and his successor, Kenneth Thompson.

In 2010, Lebovits was convicted at trial of the same crimes and sentenced to 10 2/3 to 32 years in prison. But his conviction was reversed on appeal due to an error by the Brooklyn District Attorney and a new trial was ordered; this ultimately resulted in the July sentence. At the time of his release on bail in 2011 pending a new trial, Lebovits had served just days over 12 months in an upstate prison.

Before Lebovits pleaded guilty, Dwyer stated he would normally impose the DA’s proposed two-to-six-year sentence in state prison, but did not do so because he accepted the defense’s argument that Lebovits would end up serving much closer to six years than to two because of the nature of his crimes, and that he believed that two was appropriate. (The veracity of the defense argument is questionable as inmates in state prisons are entitled to receive a one-third off the maximum term of their sentence for good behavior regardless of the crimes for which they were sentenced; that means that an inmate who receives a two-to-six-year sentence will serve at most four years assuming he qualifies for time off for good behavior.)

Dwyer decided to impose the two-year sentence on Rikers Island, in the New York City jail system. Inmates in the city jail system are also entitled to get their sentences reduced by a third for good behavior, something that is known as “good-time” credit. In Lebovits’ case, this would mean that after reducing his sentence by four months of good-time credit for each year, and deducting the 12 months he already served, his 24 month sentence would have resulted in his serving something close to four additional months (24-8-12=4). This would have brought the total length of his incarceration to about 16 months.

Lebovits’ recent stint at Rikers totaled just under three months, bringing his total time in custody to about 15 months. The reason for the one-month discrepancy is unclear; the Department of Corrections, which calculates sentences, did not return several calls seeking an explanation.

However, victims and victim’s rights activists are not concerned about this one-month discrepancy but rather the misunderstanding that led to Lebovits’ getting out as much as eight months earlier than the judge intended.

At Lebovits’ plea hearing, Dwyer made it a condition of Lebovits’ plea deal that he waive what he referred to as “early release” but is in fact good-time credit. At the hearing, the judge explained his understanding of the ramifications of this waiver. “Our understanding is that you normally would be released after about 16 months. The waiver of early release would have the effect of keeping you in some months more, not more than 24, of course, but some months more than 16.” The judge then noted, “Obviously [you would] expect to get credit for the jail time you’ve already done.”

In fact, by waiving his good-time credit, Lebovits could have been expected to serve eight months more than he did in his recent incarceration.

However, case law has established that good-time credit cannot be waived. What Lebovits could have waived was his right to apply for conditional release, colloquially known as “early release,” which may very rarely be granted for certain hardships, such as advanced age or illness. In Lebovits’ case, this type of release would have been at the discretion of the Board of Parole, not the court.

Indeed, according to a courthouse source who requested anonymity because he was not authorized to speak on the record, it is not uncommon for judges to mistakenly believe a prisoner can waive his right to “good-time” credit. “Judges and clerks often confuse ‘early release’ with [release for] good-time credit. Everyone gets good-time credit unless they get into trouble. A judge can’t [make you] waive it,” the source explained. “But you’d be surprised how many of them really don’t understand that.”

The prosecution clearly understood the distinction and, about three weeks after the plea deal was struck and a month before sentencing, sent a letter clarifying the issue to Dwyer.

The letter, obtained by The Jewish Week, noted that a defendant “apparently cannot waive the discretionary ‘good behavior’ allowance and, citing case law, went on to explain that a defendant can waive conditional release from incarceration. It then requested the court to note on the sentencing documents that the defendant had waived this conditional, early release. (As it turned out, that waiver was not noted on the documents, likely the result of a clerical error. Because Lebovits did not apply for and thus receive a conditional release, the failure to note it had no practical impact on the length of his sentence.)

The letter made no explicit mention of Dwyer’s mistake or its ramifications for the amount of time Lebovits would spend in jail.

An email to Dwyer was referred to the court spokesperson, who would not comment.

According to experts, the proper procedure in such a situation would be for the judge to correct the error on the record. However, there is no evidence that this occurred.

“The judge would now have the responsibility for arranging for a new [hearing] where the error would be corrected,” legal ethics expert and Pace University law professor Bennett Gershman told The Jewish Week.

“It’s inexplicable why the prosecutor didn’t take the affirmative step of making a motion, or the judge, on his own, didn't call the parties back to correct his error,” he continued.

“That they didn’t, there’s got to be a reason. Is it because it’s a headache? Because they want this thing to be covered up because it’s embarrassing to the judge? I guess they felt that this case was such a hot potato that they wanted to get rid of it.”

The Brooklyn District Attorney’s office declined to comment on why they didn’t seek a hearing to correct the error.

Whatever the reason, the situation has caused concern among anti-sex abuse activists, victims and their representatives.

“Clearly, Lebovits did not receive the sentence that the court intended to impose,” Niall MacGiollabhui, a lawyer for an alleged victim of Lebovits, told The Jewish Week.

“The question is whether that sentence was lawful, in that it is not the one promised to Lebovits in exchange for his guilty plea, a promise that his attorney stated he was specially relying upon at the time of sentencing. What is not in question is that Lebovits seems somehow to once again be the luckiest pedophile in New York.”

Contact: editor@jewishweek.org