Published November 17, 2014
Two former police officers acquitted of rape asked a judge Tuesday to throw out their misconduct convictions and indicated they'd try to keep their accuser from speaking at their sentencing if the convictions stand.
Kenneth Moreno, 43, and Franklin Mata, 29, who were fired from the police department within hours of the verdict in May, were to be sentenced Tuesday. Their convictions stem from their repeated returns to the accuser's apartment without telling dispatchers and supervisors where they were. They could get up to two years in jail.
But the sentencing was reset for Aug. 8 so a judge can weigh the ex-officers' bid to get their conviction tossed. Their effort also may draw on raw footage from a recent documentary about Manhattan sex crimes prosecutors, defense lawyers said.
The accuser, a 29-year-old fashion product developer who now lives in California, may speak at the planned sentencing, prosecutors said. Defense lawyers objected.
"She's had her day in court," Moreno's lawyer, Joseph Tacopina, said. "The jury has spoken."
New York law allows victims to speak at sentencings in felony cases but says nothing about whether they can do the same in misdemeanor cases. Tacopina said the New York Police Department — not the woman — would legally be considered the victim of the misconduct.
The woman's lawyers didn't immediately respond to email messages.
Meanwhile, scores of women's-rights advocates rallied down the street from the courthouse, chanting "listen to the facts — these cops deserve the max" and other slogans, and carrying signs that such messages as "NYPD — stop the violence and abuse!"
Moreno and Mata were initially summoned to help a drunken woman get out of a taxi in December 2008; they said she asked them to come back to check on her.
The woman told jurors she passed out and awoke to being raped in her bed. Moreno testified that he cuddled with her in her bed, but they didn't have sex. Mata told jurors he was napping on her sofa. In a secretly recorded conversation with the woman days later, Moreno repeatedly denied they had sex but also said "yes" twice when she asked whether he'd used a condom. Moreno told jurors he was trying to appease her.
Jurors acquitted them of all charges except the misconduct misdemeanors.
Their lawyers filed a request that a judge toss those convictions out for technical reasons. The relevant law requires that offenders derive a benefit from the misconduct or deprive someone else of a benefit, and prosecutors didn't establish that the ex-officers had done that, defense lawyers said, echoing an argument they made during the trial.
They said they may raise more questions after assessing unaired footage prosecutors gave them Monday from "Sex Crimes Unit," a documentary that debuted June 20 on HBO. Shot by independent filmmaker Lisa Jackson, it goes behind the scenes at the Manhattan district attorney's office to film prosecutors preparing for cases. The case against Mata and Moreno was included, but those scenes were cut because the case was still open when the film was being finalized, Jackson has said.
The footage includes prosecutors discussing "investigative steps and trial strategies," mentioning the usefulness of recordings like the one in the ex-officers' case, and talking about hair and DNA test results and the potential usefulness of cell phone records, according to a summary prosecutors gave defense lawyers Monday.
After reviewing it, "we may look to supplement" the ex-officers' challenge to their convictions, said Mata's lawyer, Edward Mandery.
State law requires prosecutors to turn over before trial any statements by a witness who will testify. Also, under evidence rules, documents or other recordings of authorities' preparation of a case can fall within what prosecutors are required to give defense lawyers.
The clips, together about an hour long, include some remarks about it by a DA's office investigator who testified at the former officers' trial, Tacopina said.
Prosecutors said in their letter that they were turning over the material only "out of an abundance of caution." Any witness statements reflected in the documentary footage were disclosed earlier in other formats, and the officers weren't harmed by not having the film clips, assistant district attorneys Coleen Balbert and Randolph Clarke Jr. wrote.
They said they had intended to provide the footage earlier but didn't "due to an oversight."
Prosecutors have two weeks to respond in court to the former officers' arguments for throwing out their conviction. Prosecutors declined to comment Tuesday.
Jackson's voice mail said she was out of the country. She did not immediately respond to an email message Tuesday.
Jennifer Peltz can be reached at http://twitter.com/jennpeltz