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'Rape Cops' Accuser May Have Had Equivalent of 15 Drinks, Toxicologist Says

By DNAinfo Staff on April 29, 2011 9:48pm  | Updated on April 30, 2011 9:23am

East Village police officers Franklin Mata (l.) and Kenneth Moreno (r.) are charged with raping a woman while on duty in 2008.
East Village police officers Franklin Mata (l.) and Kenneth Moreno (r.) are charged with raping a woman while on duty in 2008.
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DNAinfo/John Marshall Mantel

By Olivia Scheck

DNAinfo Reporter/Producer

MANHATTAN CRIMINAL COURT — The East Village woman accusing a pair of NYPD officers of rape may have had the equivalent of nearly 15 drinks hours before the alleged attack, a toxicologist from the city's Medical Examiner's office testifed Friday.

Toxicologist Michael McGee said the woman’s blood alcohol level was .01 percent when it was sampled for a rape kit evaluation at 2:40 p.m. the afternoon following the alleged 2008 assault.

Extrapolating backwards in time, McGee testified that the woman's blood alcohol concentration could have been as high as .32, four times the legal limit to drive a car, at 1 a.m. that morning.

He also estimated that the woman consumed between 10.9 and 14.5 "standard drinks," each one equivalent to half an ounce of pure alcohol or approximately one 12-ounce beer, between 7 p.m. and midnight.

Kenneth Moreno, 43, leaving court.
Kenneth Moreno, 43, leaving court.
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DNAinfo/John Marshall Mantel

Officers Kenneth Moreno, 43, and Franklin Mata, 28, were called to assist the woman shortly around 1 a.m. Dec. 7, after a cab driver called 911 complaining that she had vomited in his car and was too drunk to make it into her apartment on her own.

The officers are seen on surveillance footage walking the woman into her East 13th Street apartment at 1:13 a.m. and leaving less than 10 minutes later. But they are also seen returning to the building three more times that morning.

The woman took the stand earlier this month, accusing Moreno of raping her while Mata stood guard.

During her testimony, the 29-year-old woman said that she was aware of what was happening while she was being raped but was too incapacitated by alcohol to say or do anything to stop it.

On Friday, McGee confirmed that it was possible the victim would have been unable to move given her estimated blood alcohol concentration around the time of the alleged assault. He also said it was possible that she would be aware of what was happening, but not be able to react.

"It's been documented. It does occur," he testified.

At 5 a.m., when the officers were seen leaving for the last time, her blood alcohol was estimated at between .17 and .22 percent.

The defense has previously argued that the woman was too drunk that night for her testimony to be considered credible.

While not conceding that intercourse occurred between Moreno and his accuser, they have hinted that she might have consented to advances by the officer but then forgotten them. In this case, the prosecution would have to prove that the woman was too drunk to consent.

Leaving court on Friday, Moreno’s attorney Joseph Tacopina seemed to refer to the latter defense strategy, hailing the toxicologist’s testimony as beneficial to his case.

"At 1 a.m., when she's as intoxicated as she's gonna be, according to their testimony, she's captured on video walking on her own," Tacopina said. "They have to prove that she was intoxicated to the point that she was incapacitated."