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Prosecutor Mistake Delays Trial of Police Officers Accused of Rape

By DNAinfo Staff on March 7, 2011 11:47am  | Updated on March 7, 2011 11:58am

Franklin Mata (l.) and Kenneth Moreno (r.) before a hearing in their rape case last week.
Franklin Mata (l.) and Kenneth Moreno (r.) before a hearing in their rape case last week.
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DNAinfo/John Marshall Mantel

By Shayna Jacobs

DNAinfo Reporter/Producer

MANHATTAN SUPREME COURT — Prosecutors botched the grand jury proceedings against a pair of East Village police officers accused of raping a drunk woman they helped to her apartment, forcing them to go back to the grand jury for a new indictment, they revealed Monday.

Prosecutors have to present their case to a new grand jury against police officers Kenneth Moreno, 43, and Franklin Mata, 28, because the District Attorney's office neglected to present a piece of evidence to the original grand jury panel that heard the case back in 2008, they said in court.

"We are seeking to re-present the case to the grand jury and we shall be ready for trial on [March 21],"Assistant District Attorney Randolph Clarke said.

Jury selection was supposed to begin in the officers' trial on Monday.

The DA's office did not specify what piece of evidence they said they accidentally declined to show grand jurors three years ago.

The evidence is not something newly discovered like an additional witness or video exhibit, they said.

"This is not new evidence this is something you're trying to correct in the grand jury, is that correct?" Manhattan Supreme Court Judge Gregory Carro said, adding, "I'm not sure why it took this long to figure it out."

Moreno's lawyer Joseph Tacopina was legally prohibited from discussing the secret grand jury proceedings and could not elaborate on the overlooked evidence and how it potentially helps his client.

But he said the missing piece of evidence "very much supports" the defense's case, although it is not likely to convince a grand jury not to indict the defendants.

"I fully expect we'll be picking a jury on March 21st," Tacopina said. 

Moreno and Mata were each indicted on rape and other charges after allgedly sexually assaulting a 27-year-old woman who was apparently too drunk to get from the cab to her fifth-floor apartment on Dec. 9, 2008. 

Prosecutors said Moreno and Mata, who were partners, were called to the scene by a cabdriver concerned about the drunk woman. After getting her home, they allegedly later returned and Moreno raped the woman as Mata stood guard.

At a hearing in Manhattan Supreme Court last week, audio evidence was played in which the woman wore a wire to tape an alleged confession by Moreno in which prosecutors say he admitted using a condom during the encounter.

The same tape includes Moreno repeatedly denying having any sexual contact with the woman, prompting his lawyer to call the alleged admission just a way to get the woman to stop making a scene at the precinct.

The officers have been suspended from duty since their arrest more than three years ago. They each face up to 25 years in prison if convicted.