By Shayna Jacobs
DNAinfo Reporter/Producer
MANHATTAN SUPREME COURT — An attorney for a man arrested on a DNA match for an alleged rape on the Lower East Side plans to argue that the statute of limitations on the case has run out.
Prosecutors indicted Lerio Guerrero, 32, in the rape of a 28-year-old college professor who was returning to her Orchard Street building in 1998.
The suspect was arrested 13 years later, after a DNA sample he allegedly left at the crime scene matched his profile from a DWI conviction, and charged with rape, sodomy, burglary and robbery. He was held without bail earlier this month.
But his attorney, James Palumbo, told DNAinfo that cops have had Guerrero's fingerprints since 2000 and could have tested them against those found on an ATM near the scene of the rape.
Palumbo said the rape indictment came after the five-year legal deadline, which no longer exists in New York State. Under the old law, prosecutors could get an extension to 10 years if "due diligence" was done to solve the crime, he said.
"If they had used due diligence they could have gotten a match as early as the year 2000 and failure to use due diligence means that the statue of limitations has expired," said Palumbo.
Prosecutors had indicted a "John Doe" with Guerrero's DNA profile in 2005 to preserve the case when the statute of limitation is expired. This is common practice when investigators have the DNA sample but no suspect.
This case, prosecutors say, was handled the same way any other "John Doe" case has been.
Guerrero was in court on Thursday for a hearing in which Manhattan Supreme Court Judge Bonnie Wittner set bail at $100,000 bond or $50,000 cash.
He is due back in court in September.
