Bookmark and Share

Monday, 18. December 2017


Weiss Sentenced

A Transcript of Weiss Sentencing

THE PEOPLE OF THE STATE OF NEW YORK
-against-
YAAKOV WEISS, Defendant.

ALBANY COUNTY COURT


SENTENCING BEFORE: HON. STEPHEN W. HERRICK, County Court Judge


APPEARANCES:

For the People .
HON. P.DAVID SOARES, Albany County District Attorney

BY: SHANNON SARFOH, Assistant District Attorney


For the Defendant
PROSKIN LAW FIRM
BY: ARNOLD PROSKIN, ESQ.
LISA PROSKIN, Attorney at Law

ALSO PRESENT:
THE DEFENDANT

DATE: March 8, 2010


PROCEEDINGS:

THE COURT: In accordance with the current law on cameras in the courtroom, there has been a request from Fox News to be allowed to tape for AV replay the proceedings here today in the matter of Yaakov Weiss. We have conferenced this request, which I received last week and received again this morning, and The People take no position regarding the application. The defense opposes the application. Based on the facts and circumstances of this case and the media interest in this case, I will grant the application, over objection, and Fox News and I think Channel 13 may set up their cameras, and the Times Union also requested still photography. That's granted over objection.

Yaakov Weiss, could you please come up and have a seat at the defense table. This is the matter of the People vs. Yaakov Weiss. This matter is on my calendar today for sentencing on Indictment 31-2649. The People are represented by Assistant Albany County District Attorney Shannon Sarfoh. The defendant is represented by the Pros kin Law rm. Arnold Proskin and Lisa Proskin are both present. The defendant is personally present this morning.

Are the People ready to proceed with sentencing?

MS. SARFOH: Yes, Your Honor.

THE COURT: Mr. Proskin, are you ready to proceed with sentencing?

MR. PROSKIN: We are, Your Honor.

THE COURT: All right. The Court has received a Presentence Report dated March 3rd, 2010, with attached victim statements. I've also received a sentencing memorandum from the Proskin Law Firm with attached letters in support of the defendant dated March 2nd, 2010, a Forensic Mental Health Associates Report by Dr. Richard Hamill dated March 2nd, 2010, a victim statement package dated February 18, 2010, from <victim's parents' names redacted> with attachments, a letter from <victim's parents' names redacted> dated March 4, 2010, a letter from Dr. Hamill after a telephone call to him from Lisa Proskin dated March 3rd, 2010, and I have reviewed all of those documents for purposes of today's sentencing.

And can I have the attorneys approach, please. Rabbi, would you please come up. Mr. Proskin, have you received the Presentence Investigation Report in this matter?

MR. PROSKIN: Yes, sir, I have, Your Honor.

THE COURT: And, in fact, we have conducted a presentence conference in accordance with the plea bargain last week. Have you had an opportunity to review the Presentence Report?

MR. PROSKIN: Yes, we have, Your Honor.

THE COURT: Is there anything contained in the Presentence Report in the manner of error or omission that you would like to bring to the Court's attention?

MR. PROSKIN: Yes, Your Honor. There is an error on the first page. Where it says total number living in Rabbi Weiss's home, it says "six," and there are five, his wife and three children, and they are the only ones living in the home.

THE COURT: I have "five" listed on mine.

MR. PROSKIN: Maybe it's the photocopy that I received or the fax that I received.

THE COURT: I have "five."

MR. PROSKIN: "Five" is accurate, Your Honor.

THE COURT: Anything else?

MR. PROSKIN: No, Your Honor, there is nothing else.

THE COURT: Is there any legal cause why sentencing cannot go forward today?

MR. PROSKIN: There is none, Your Honor.

THE COURT: Do The People have a yictim statement that they wish to either present or read?

MS. SARFOH: Yes, Your Honor. There is a victim statement provided by the parents of one of the victims, the boy whose name is known to The Court, as well as his parent's name was attached to the Presentence Investigation Report, and they are requesting that I read that here in Court today.

THE COURT: You may.

MS. SARFOH: "Dear Judge Herrick: When a person is the victim of a crime, it's upsetting. When that victim is a friend or a family member, it's felt much more. When your child is the victim, it's devastating. A scratch or a stubbed toe can bring a mommy to tears. But when there is a wound deep inside, when it can't be healed by a kiss, medicine, or a Band-Aid, that wound becomes the parent's as if it had been done to them. When the parents hurt, it becomes the family's hurt. We go to sleep with it. We wake up with it. It's there when we eat, read, breathe. We try to wish away the pain from our child so that only we feel it.

As the mom, I toss and turn all night, have a nagging pain in my head constantly, and TMJ to deal with. And the suffering of our son, right now that is done in silence. The psychologist has told us, let him be. When he is ready to talk about it, then we will deal with it. This is not the future we envisioned for our son.

Our son is a victim of a man whom we knew. He was a teacher, mentor, friend to our son. We wish that we could ask that Yaakov Weiss be kept in jail for 60 years, but our request can only be for 60 days. 60 days in the scheme of things is not very long. Not long enough for him to reflect on his crime. Not long enough for him to regret his crime. Not long enough for him to suffer for his crime. But the 60 days just might let me have a full night's sleep, relax my jaw, and maybe, just maybe, save one child in the wrong place at the wrong time from being another of his victims.

His 60 days of suffering, being locked up, can't even be one-sixtieth of our suffering from his actions and arrogance.

Please, Judge, Yaakov Weiss deserves much more time locked up, but at least make him serve the whole 60 days. Thank you."

THE COURT: Mr. Proskin, do you wish to be heard in reference to sentence?

MR. PROSKIN: Your Honor, if I may, would be -- we did submit a sentencing memorandum.

THE COURT: Yes, you have, and I have reviewed

MR. PROSKIN: Your Honor, I just want to just underline one thing. Rabbi Weiss has been for this community for the last several years -as you know from the letters from everybody that you received, he's been doing wonders for the community. He's got a wife. He's got three small children. Very happy, happy relationship.

Now I would just ask that The Court consider looking at this,that he's agreed to the Probation terms, he knows what he's going to be doing, and he's accepted all of this readily, Your Honor. I would just ask that The Court consider when the ultimate sentence is given to him, the three years Probation, to give him community service. He can serve our community. It would be much better for the community. I don't think anything would be done, I don't think anything would be accomplished, by having Rabbi Weiss do any jail time. I think the community would be served -- if you said to him, You're to do so many hours of community service, serve the community, whatever you can do, it would be the best for him, for his family, and I believe for the community.

Thank you very much, Your Honor.

THE COURT: Rabbi Weiss, do you wish to be heard?

THE DEFENDANT: Yes.

THE COURT: Go ahead, please.

THE DEFENDANT: I regret everything that has been done, and I would like to apologize to everyone that's been hurt. I have devoted my entire life to helping people, and I would like to thank The Court for the opportunity to continue to do so. I'm sorry. I apologize.

MS. SARFOH: Your Honor, if The People also may be heard in addition to the impact statement?

THE COURT: I'm sorry?

MS. SARFOH: If The People may also be heard?

THE COURT: I'm sorry, I apologize.

MS. SARFOH: That's no problem, Thank you Your Honor.

THE COURT: Then I'll give you another opportunity, if you wish. I went out of turn.

MS. SARFOH: As The Court is aware, the resolution reached in this case did not come easily. As in all cases, The People weighed all of the relevant factors, including the strengths and the weaknesses of the proof we expected to be adduced at trial, all evidentiary rules, hurdles and lack thereof that we anticipated, the seriousness of the conduct constituted, and the offenses charged. And as The Court is aware, all of the conduct alleged to have been committed by this defendant only rises to the level of four Class A misdemeanor offenses that were charged in the indictment. The conduct is nonetheless egregious.

The final and most important factor, the one weighed most heavily by The People, is the impact upon and wishes of the victims, along with their families. I worked very closely with these families, having countless hours of conversations with primarily their mothers, but their fathers as well. They remained involved, informed, and available at every stage in this case. More importantly, I met and spoke with the victims on numerous occasions.

The goal in this case, as in all cases, is to seek justice. The question often confronted by The People is what is true justice in a particular case. Our goal, through criminal sanctions among other things, is to force accountability upon the defendant, seeking justice on behalf of those he victimized and to protect the public, which includes putting our community on notice, of the risk posed by the perpetrator. These interests are sometimes competing, and this is rarely more true than in cases involving sexual abuse. At the outset, The People intended to seek a conviction by trial or otherwise of an offense which would require Sexual Offender registration. As the case progressed, I had the privilege of working with the boy, now a young man, one of the victims who had the courage to place that controlled phone call that is the subject of Count 4 of the indictment. I saw in him, my most crucial witness, the tremendous burden he bore with the weight of this prosecution placed squarely on his young shoulders. As I met with him again and again, he told me he did not want to testify. He was fortunate in that his anonymity had been protected as illustrated by the conversations that he had relayed to me where individuals within his religious community, from Albany to Crown Heights, speculated about that Rabbi in Albany and who his victims were, not realizing that one of them stood there with them.

The other victim was less fortunate in that the defendant, in an effort to deflect from his own wrongdoing, utilized the media to publicly hurl accusations at the boy's father, thereby revealing the identity of his victimized son. The community pressure faced by these families has been rather extraordinary. They have been vilified. The effects reach far beyond the borders of Albany County and the response a national one in their very close religious community. It became abundantly clear to me that in this case justice was best served by sparing that young man, my most vital witness, from testifying at trial, from not only the rigors of cross-examination about such difficult details, but also from all that a very public trial would mean for him personally, going forward long after the jury rendered s verdict.

It's for that reason that when Mr. Proskin came to me on the morning of trial asking if The People would entertain further plea negotiations did I agree to do so and why I consented to this plea agreement. This agreement, with the very thorough and detailed allocution required by The People in order to make perfectly clear the conduct the defendant subjected those two 13-year-old boys to, was designed to satisfy all of those competing factors that I spoke about a moment ago -in a way that least harmed the victims. The overwhelming relief described to me by that boy's mother when he learned that this case had been resolved by plea reaffirms the necessity of this resolution.

The People would request that the maximum within the plea bargain be imposed. That is 60 days in Albany County Jail, three years Probation with the associated Sex Offender conditions, including GPS and no-contact Orders of Protection, which I have proposed here before you, Your Honor, and, of course, waiver of his right to appeal. Thank you.

THE COURT: Mr. Proskin, do you wish to add anything to what The People said?

MR. PROSKIN: Your Honor, I was not going to, but I have to just respond to one thing that was said. Your Honor, a plea was entered in this matter, but there were defenses. This trial was ready to go. We had our trial -- we were ready for trial. There were defenses in this matter, and I know the District Attorney just stated that this was done -- this was done on our side because I felt that if he went to trial, it may be very difficult for a fair trial to come about, nothing to do with The Court or the District Attorney, and I felt that at that point, the Rabbi would then be designated to be a sexual predicate, predicate offender --

THE COURT: Sexual Offender

MR. PROSKIN: Sex offender. And this would actually ruin his career the rest of his life, if he were convicted, and that was the reason a plea was entered, not that there were no defenses. Your Honor, there were defenses, and I think it's best for the community, best for everyone, best for the Rabbi, best for the victims, that there was no trial, and I do want to point out that there may be -- there will be a civil trial probably later on, because I know a civil lawsuit is going to be started. We are not representing him at that time. And that's going to be a continuation, but nothing to do with this at all.

So that was the reason that we advised the Rabbi to enter the plea, and he agreed at that time. He knew the defenses and he did agree to enter the plea for the various reasons I just noted. Thank you very much, Your Honor.

THE COURT: Rabbi Weiss, do you wish to add anything?

THE DEFENDANT: I just want to publicly thank Arnold and all of my supporters for the support that they've given us until now. Thank you.

THE COURT: Rabbi Weiss, we're here today to proceed to sentence you on a single misdemeanor count of Endangering the Welfare of a Child, Count 4 of the indictment in this case. And I, too, would like to clarify the record.

At all times, Rabbi Weiss, you were charged only with misdemeanors, never a felony. This case was not resolved at the last moment by a plea down to a misdemeanor in order to avoid a potential prison sentence. You allocuted to three of four of the misdemeanor counts when you pled guilty before me in this courtroom on January 11, 2010.  You pled guilty to one count, Count 4. You allocuted to three. Sentence was adjourned to March 1st, and then further adjourned to today, March 8th, in order to allow completion of Dr. Hamill's psychological evaluation, a Sex Offender evaluation, and his report and the Presentence Investigation Report prepared by Albany County Probation. A presentence conference with the attorneys was held on March 3rd, 2010, after receipt of Dr. Hamill's report and the proposed orders and conditions of Probation.

While you did not plead guilty to a Sex Offense, Rabbi, I believe, based on what Ms. Sarfoh has just said regarding The People's concerns over evidentiary issues, you did plead guilty to a misdemeanor of Endangering the Welfare of a Child, which you admitted in reference to Count 4, including also Counts 1 and 3 .

The admission that you made before me on January 11 was that you, on two separate occasions in the changing area of the Mikvah on White Hall Road in the City and County of Albany, first in June of 2007 and on a second occasion in the months of November or December 2007, with two different 13-year-old boys, and while both you and the boys were naked, and while you were giving back rubs to each of the boys, you knowingly had inappropriate physical contact with each of the two boys, knowing that your inappropriate contact with each of the boys was likely to be injurious to the physical, mental, or moral welfare of each of the boys. The inappropriate physical contact alleged in the indictments in Counts 1 and 3 was that your penis came into contact with each of the boys' buttocks.

While you did not plead guilty to Sexual Abuse in the Second Degree, the Class A misdemeanors charged in Counts 1 and 3, these incidents you admitted, the inappropriate physical contact with each of them, contained allegations of sexual contact.

You've also admitted and pled guilty to Count 4 that you knowingly advised one of the two boys, the one involved in the June 2008 incident, to be untruthful as to what had happened in the June 2007 matter, and knowing, once again, that it was untrue, that in fact there had been inappropriate physical contact with that boy, you advised him to be untruthful to his mother, to his parents, and to the police and not to talk to the police, again knowing that this advice to  the boy as the boy's Rabbi, teacher, and spiritual advisor, was likely to be injurious to the boy's physical, mental, or moral welfare.

You agreed as part of this plea agreement to cooperate with both Dr. Hamill and the Probation Department, and you have. You have not denied the alleged physical contact of your penis to the buttocks of the two boys, but you have said that you do not recall it happening in either instance. I think it is fair to say that both Dr. Hamill, his polygraph expert, and the Probation Officer who prepared the Presentence Report believe otherwise.

You have utterly failed to accept responsibility for your actions here. Some of the letters received by me on your behalf indicate quite clearly that people have an inaccurate view and inaccurate information regarding what you pled guilty to. Something did happen in the City and County of Albany, New York, in 2007 and 2008 regarding you and these two boys, and it was not a good thing. And you have not accepted that fact or responsibility for it.

Instead, this case has focused, Rabbi, on you and the people that support you, not on the boys and their families. Rabbi, with all due respect to you, sir, you are not the victim here. The boys are the victims here. We have gotten away from that fact, and it's time now to return to that issue.

The plea bargain included three years Probation with up to 60 days in custody. The terms and conditions of Probation are to be set by The Court based on Dr. Hamill's Sex Offender evaluation and recommendation. He recommended that there be Sex Offender conditions in the terms and conditions of Probation, and as you are aware, I have included over 25 such conditions in the orders and conditions of Probation.

While you will not have to register as a Sex Offender, you will have to comply with the Sex Offender conditions of Probation, which include a condition that you successfully complete Sex Offender treatment and counseling, and a number of conditions restricting your contact with children of both sexes under the age of 17.

I have the orders and conditions of Probation which, Mr. Proskin, you have previously received. I faxed them to you last week. I'm handing five sets to you (indicating). I'd ask you to review those.

And before you do that, do you wish to comment on the comments of The Court, Mr. Proskin

MR. PROSKIN: May I have one moment, please?
(Whereupon, Counsel and Defendant confer.)

MR. PROSKIN: Your Honor, no. We have determined it's best -- I have no comment at all, Your Honor. Thank you.

THE COURT: All right. Please go over the orders and conditions and obtain your client's signature on each of the five.

MR. PROSKIN: One moment, Your Honor.

THE COURT: Please witness his signature.
(Whereupon, Counsel and Defendant confer.)

MR. PROSKIN: Your Honor, you want me to sign also?

THE COURT: Yes.
(Whereupon, Counsel and Defendant confer.)

THE DEFENDANT: (Indicating.)

MR. PROSKIN: Your Honor, my client has executed all copies of the terms of Probation and I have the orders and conditions of Probation

THE COURT: All right. Rabbi Weiss, I am showing you the orders and conditions of Probation. I have five duplicate originals. I'm holding up one (indicating). Beneath my signature on Page 2 of one of the sets of orders and conditions of Probation dated today, there is a signature for "Probationer." Is that your signature?

THE DEFENDANT: Yes, Your Honor.

THE COURT: That's your normal business signature?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And you signed each of the five sets?

THE DEFENDANT: Yes, Your Honor.

THE COURT: You have examined the five sets to understand and accept that they are identical to each other?

THE DEFENDANT: Yes, we have.

THE COURT: And you agree to abide by the terms and conditions of Probation as set forth in the orders and conditions of Adult Probation?

THE DEFENDANT: Yes, I definitely do.

THE COURT: And I have two sets of Orders of Protection, or two Orders of the Protection. Again, are these your signatures on the two Orders of Protection?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Your signatures only mean that you will receive copies of those. And I'll have copies made and provided to you and your attorneys in just a moment.

And at this time, Rabbi, in accordance with the plea bargain, The Court, having given due consideration to all of the information provided to me by The People and by the defense, as well as Dr. Hamill, imposes a sentence of 60 days in the Albany County Correctional Facility to commence today, March 8, 2010, three years Probation, a concurrent term of three years Probation in accordance with the terms and conditions of Probation set forth in the orders that you have just signed, a $200 surcharge and victim fee, plus a $50 DNA databank fee, and I've given you six months to have those monies paid to the Clerk of Albany County, two Orders of Protection ordering and directing that you have no direct or indirect contact with either of the two boys involved with these matters, and your waiver of appeal remains in full force and effect.

And at this time your status is revoked and you're remanded to the custody of the Sheriff in accordance with the sentence imposed.

MR. PROSKIN: Your Honor, may I ask one more time? I did ask this previously. As you know, Passover is coming and Rabbi is -- he has a very, very, strict, strict diet and will not eat any of the food that we buy in the stores, and I would like to ask if at all possible that he can turn himself in a day after Passover completes itself?

THE COURT: You mentioned that last week -

MR.PROSKIN: Yes, I did.

THE COURT: -- during the conference. I have had contact from Rabbis regarding this. I have spoken to the Albany County She ff on two occasions, and I am assured, as with other religions, that the Jail is able to accommodate the Rabbi's religious needs. So your request is denied.

The defendant is remanded.

MR. PROSKIN: Thank you very much.

THE COURT: I am providing you with copies of the orders and conditions of Probation

(Whereupon, the proceedings in the above-entitled matter were concluded, this date.



CERTIFICATION



I, JACQUELYN BURKE GECEWICZ, a Senior Court Reporter, Unified Court System, Third Judicial District, State of New York, do hereby CERTIFY that the foregoing is a true and accurate stenographic transcript of the proceedings, to the best of my ability, held in the above-entitled matter, before the HON. STEPHEN W. HERRICK.

Relevant Video






Copyright 2010 JewishColonie.Info, All Rights Reserved Bookmark and Share