Ex-NY cop cleared of rape gets jail on misconduct

AP News
Posted: Aug 08, 2011 6:16 PM
Ex-NY cop cleared of rape gets jail on misconduct

Officially, the yearlong jail term a former police officer got Monday was simply for keeping dispatchers and bosses in the dark as he returned three times to a drunken woman's apartment after helping her get home.

But latent in the tense courtroom were the more serious charges of which Kenneth Moreno had been cleared _ allegations that he raped the semiconscious woman.

With his accuser and about a score of women's advocates looking on in a tense courtroom, a prosecutor said the "implausibility" of Moreno's account of his December 2008 encounter with the woman "cries out for a strong judicial response." Moreno's lawyer retorted that it seemed prosecutors "didn't hear the `not' before the `guilty' in this verdict." And a judge decried Moreno's version of events as self-serving "lies."

A grim-looking Moreno was led away after hearing his sentence, though an appeals court agreed hours later to free him on $125,000 bond during a planned appeal.

"There will be people who conclude in some way, I took into consideration charges of which you were acquitted," state Supreme Court Justice Gregory Carro said before giving Moreno half the maximum possible sentence. "That is not the case."

Rather, he said, "there has to be an import to some of the lies you told on the stand ... but also your position at the time you committed these crimes. You were a police officer."

Moreno, 43, and his former partner, Franklin Mata, 29, were fired from the police department within hours of their official misconduct convictions and acquittals on rape, burglary and other charges in May.

Mata's sentencing was postponed from Monday to Wednesday because his lawyer was enmeshed in a trial elsewhere. He had been accused of standing watch while Moreno was with the woman, who had been out celebrating a job promotion.

The two met their accuser in December 2008 after a taxi driver called for help getting her out of his cab. She told authorities she passed out and awoke to being raped in her bed, saying she acutely remembered being violated despite being unclear on significant stretches of the night and early morning.

And she secretly recorded a conversation days later in which Moreno alternately denied they had sex and said "yes" twice when she asked whether he'd used a condom. Moreno told jurors he was trying to mollify her.

The former officers acknowledged returning to her apartment three times within four hours of the initial call, while saying they were elsewhere _ the genesis of their misconduct convictions. Moreno admitted he even placed a phony 911 call about a sleeping vagrant to provide a pretext for one of the visits.

"He risked having police resources expended for his own devious and selfish purposes," Assistant District Attorney Coleen Balbert told the judge. "This was not just a stupid mistake."

The officers said the woman had asked them to come back and check on her, and Moreno said he felt impelled to give her advice about drinking and to comfort her. He said that she made advances and he ultimately ended up cuddling with the barely dressed woman in her bed, but that they didn't have sex. Mata said he was sleeping on her sofa while the others were in the bedroom.

While the ex-officers intend to appeal their misconduct convictions, they had seen the verdict as some vindication in a case they portrayed as a good deed gone awry.

"I thought she made the whole thing up," Moreno said after the verdict. In trying to help the woman, he said, he "made a judgment call ... and I paid for it."

But Carro made it clear he wasn't impressed with the ex-officers' version of the encounter.

"Your testimony," he told Moreno, "was classic for its admitting what you couldn't deny, denying what you couldn't admit, and classic tailoring of your testimony to the witnesses who testified before you."

Moreno lawyer Joseph Tacopina, after court, said the judge's view was his prerogative. "Of course, I don't agree with it, and neither did the jury," he said.

The case ultimately pitted the woman's word against the former officers' denials. No DNA evidence implicated the officers, expert witnesses debated whether an internal mark found on the woman could be seen as a sign of a sexual attack, and both sides saw support for their positions in the recorded conversation.

Some jurors said later that they had too much doubt to convict in a rape case with no DNA evidence and with an accuser who acknowledged her memories were spotty.

But the verdict spurred outrage from women's advocates, who saw it as a discouraging example of difficulties women face in coming forward with a sexual assault complaint. National Organization for Women members demonstrated outside the courthouse Monday, carrying signs with slogans including "NYPD: Protect Women" and "Take Rape Seriously," before watching the sentencing.

But while denouncing the acquittal, the organization praised the sentence, noting that it was technically the maximum for the offense. The judge could have given more time only by ordering the terms for Moreno's three counts to run consecutively, up to a two-year limit. The legal reasoning governing consecutive sentences in New York is complicated, and they are somewhat uncommon.

NOW's deputy director for New York City, Jean Bucaria, called Carro's sentence "the right step toward restoring the public trust that these cops so blatantly violated."

City Councilwoman Rosie Mendez, who had joined colleagues in criticizing the verdict at a City Hall rally in May, said in an email message that the sentence was "a sound decision."

Prosecutors had wanted the maximum two years. Tacopina had pressed for probation, noting that the ex-officer's first-time conviction had cost him his 17-year job and his pension and that probation officials had said there was no need to jail him.

Moreno declined to speak at his sentencing. His accuser, now a 29-year-old fashion product developer in California, wasn't offered an opportunity to speak. New York law allows victims to speak at sentencing in felony cases but says nothing about whether they can do the same in misdemeanor cases.

The woman said in a statement after the verdict that her "world was turned upside-down by the actions of two police officers who were sent there to protect but instead took advantage of their authority and broke the law."

Her lawyers, who are representing her in a multimillion-dollar lawsuit against the city, said Friday that she didn't plan to comment about the sentencing.

The Associated Press doesn't identify people who say they are victims of sex crimes unless they publicly identify themselves or agree to be named.


Jennifer Peltz can be reached at http://twitter.com/jennpeltz.