Former 33rd Precinct officer Michael Pena, 30 — who grabbed Lydia Cuomo, then 24, as she walked to her first day teaching at a new school early on Aug. 19, 2011 and threatened to shoot her in the head if she resisted his 20-minute sex attack — is being punished for prior failures by prosecutors, his lawyer said.
"In this case, a young 28-year-old man, whose crime was grievous, yet aberrant to his character and prior personal history, was punished more harshly than al-Qaida terrorists, vicious killers, kingpin narcotics offenders, violent gangsters and racketeers and other recidivist predators," Pena's lawyer, Ephraim Savitt, said in court documents, adding that he wants the appellate court panel to slash the amount of time Pena must serve.
"This is ... a case of justice run amok, fueled by public outrage drummed up by the media, fired up by two then-recently highly publicized failed sex-crime prosecutions and the perceived need by the prosecution and the sentencing judge to send the proverbial 'message,'" Savitt said in court papers of Supreme Court Justice Richard Carruthers' sentence of three 25-year-to-life sentences, which he ordered Pena to serve consecutively.
Pena's trial came shortly after the Manhattan District Attorney's office failed to convict two police officers charged with raping a woman in her East Village apartment in 2008. Those officers were convicted of official misconduct in August 2011.
The acquittal of those officers prompted protests against the Manhattan District Attorney's office. The DA's office was also criticized for dropping a sexual-assault case against former International Monetary Fund head Dominique Strauss-Kahn, who was accused of attacking a hotel maid in Midtown.
Pena's case, which appeared more straightforward than the other two cases, included a witness who told the jury he saw Pena attacking Cuomo in an alley.
A jury did not convict him on the rape charge, because they did not feel the prosecutor proved the narrow definition of rape during the trial. He was convicted on other counts of criminal and predatory sex acts.
The rape acquittal again caused a firestorm of public outrage and prompted Cuomo to come forward publicly to offer her support for a change in the legal definition of rape. That law failed in Albany last year.
Pena eventually pleaded guilty to rape after prosecutors ramped up for a second trial, but that conviction did not add additional time to his sentence.
Cuomo told DNAinfo New York that she supported the judge's sentence.
"The judge didn't make the sentencing up," she said. "He's following guidelines."
Cuomo, who has continued her teaching career in the city, defended the Manhattan District Attorney's office.
"They seek justice in every case they do," she said.
Although the DA does not determine punishment, Savitt argued that recommendations made to the judge and the vigor with which they prosecuted the case persuaded Carruthers to hand down a stricter sentence.
"It sends the wrong message that it is better to murder a woman whom you have raped because the penalty for murder is 25 years to life, making the offender eligible for parole after 25 years, whereas if she survives more than one sex act in the same encounter, the offender will never face a parole board in his lifetime," Savitt argued.
The Manhattan District Attorney has not yet responded to the appeal and declined to comment.
No date has been set for the appeal hearing.