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Ex-Cop Cleared of Rape Sentenced to Year in Jail for Misconduct

By DNAinfo Staff on August 8, 2011 11:19am  | Updated on August 8, 2011 9:06pm

Kenneth Moreno (l.) leaves Manhattan Supreme Court followed by his lawyer, Joseph Tacopina (r.), May 26, 2011.
Kenneth Moreno (l.) leaves Manhattan Supreme Court followed by his lawyer, Joseph Tacopina (r.), May 26, 2011.
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DNAinfo/Paul Lomax

MANHATTAN SUPREME COURT — Former New York City police officer Kenneth Moreno, who was cleared of raping an East Village woman, was sentenced to a year in jail Monday by a judge who said he lied on the witness stand and violated the public trust.

The accuser, who said Moreno raped her while his partner, Franklin Mata, stood guard for him on Dec. 7, 2008, was in the courtroom and wept throughout the sentencing. She did not have the opportunity to speak even though prosecutors had asked for the opportunity.

Moreno, 43, and Mata, 29, were found not guilty of rape, burglary and falsifying records in May after their trial captivated the city for more than two months. But a jury convicted the pair on official misconduct charges for failing to call an ambulance for their ward, among other problems.

Manhattan Supreme Court Justice Gregory Carro said Monday that Moreno's testimony on the stand about cuddling with the accuser and counseling her about the dangers of binge drinking did not ring true.

"Now during your testimony, you told a story that was incredible," said Carro. "Your testimony was classic for admitting what you couldn't deny, denying what you couldn't admit, and classic tailoring of your testimony to the witness that testified before you."

Moreno appeared stoic and declined to speak before being led to a holding cell. His lawyers went immediately to Manhattan Appellate Court, where they were granted his release on $125,000 bail while he awaits the outcome of an appeal seeking to have his his conviction overturned on the grounds that the jury was not properly instructed about the official misconduct charge.

Moreno's lawyers also argued that official misconduct is a police infraction, not a criminal act, and asked a judge to release him on bail while his appeal is pending.

Mata's sentencing was postponed until Wednesday because of a scheduling conflict with his attorney.

Judge Carro said in his sentencing that Moreno and Mata conspired to concoct testimony to cover up what took place.

For instance, the judge said, Moreno refuted the woman's recollection of the sound of Velcro ripping, which was an indication that he was removing his uniform to have sex with her.

"Now, it's certainly not illegal to take advantage of an intoxicated woman, but it is a crime when you're a police officer in uniform," the judge said.

Moreno testified the woman stripped down to her underwear and played with the Velcro on his jacket, and said that he refused her advances and merely stayed to keep her company out of pity, but Carro suggested he didn't buy that or several of the other explanations Moreno offered at trial. 

"By your own admission while you were supposed to be performing your duty. You were in bed with an intoxicated, naked young female," said Judge Carro, who made a reference to a phony 911 call Moreno placed about a nonexistent bum in a vestibule on the woman's block. "You wanted to get into that apartment so badly you committed a crime in order to do so."

Moreno's attorney, Joseph Tacopina, accused prosecutors of disregarding the jury's verdict and proceeding as if the officers had been found guilty of a more serious crime than not doing their jobs.

"It's as if they didn't hear the 'not' before the 'guilty' in the verdict," Tacopina said in arguing for a probation-only sentence for Moreno.

Prosecutors had asked Moreno be put away for two years, the amount of time they initially believed was the maximum.

Assistant District Attorney Coleen Balbert said the officers had malicious intentions the entire night, as evidenced by a fake 911 call Moreno admittedly placed to buy time to get back to the accuser's apartment.

"This was not just a stupid mistake, it was plainly and simply criminal," Assistant District Attorney Coleen Balbert argued on Monday.

One of jurors, Christopher Hazeltine, attended the sentencing and felt the DA's office was dishonoring their verdict by insisting on a jail sentence for Moreno and Mata even though the jury found no serious crime had occurred.

He said he believed Carro had been caught up in "the Casey Anthony effect" of this high profile case and was reacting somewhat to public response rather than the facts of the case.

"The judge basically had to prove a point. There was pressure from the public. There was a point that had to be proven," said Hazeltine, who said he and nine of his colleagues believed no rape had occurred and the others were convinced there was not sufficient proof.

Hazeltine, a Department of Education employee, said he did not agree with the judge's assessment that Moreno manufactured his sworn statements, but said there were "issues" with the testimony on both sides.

Other jurors, after the verdict, told DNAinfo they believed that Moreno had in fact raped the 29-year-old while Mata stood lookout, but felt they couldn't convict without DNA evidence to corroborate the woman's story.

One female juror, a woman who asked that her name not be used when reached by phone, said she disagreed with her colleague who attended Monday's proceeding.

"I'm disappointed ... I think one year is not enough for what he did. I think he should have gotten the maximum two years," the juror said.

"He knew exactly what he was doing," the she added, "I don't believe it was his first time with misconduct, he just was not caught before."

The juror added that she thought the judge should have allowed the accuser to speak. And she hoped that Mata faced "the maximum" during his sentencing Wednesday.

"He knew what was going on also. What police officer comes into your home and sits on your couch and goes to sleep while the other [officer] is in the bedroom?"

Mata and Moreno's sentencing had originally been scheduled for June 28, but was postponed to Aug. 8 after defense attorneys accused prosecutors of failing to hand over footage from an HBO documentary about the district attorney's Sex Crimes Unit, which was filmed during the lead-up to the trial.

Moreno still faces heroin possession charges for drugs that were allegedly found in his police locker following his arrest. Moreno is expected back in court Sept. 12 when a trial date for those charges could be set.