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Rape Case Against Ex-Cop Ends in Mistrial

By DNAinfo Staff on March 28, 2012 12:46pm  | Updated on March 28, 2012 8:54pm

Michael Pena in court March 15.
Michael Pena in court March 15.
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DNAinfo/Theodore Parisienne

By Shayna Jacobs, Mary Johnson and Trevor Kapp

DNAinfo Staff

MANHATTAN SUPREME COURT — A judge Wednesday declared a mistrial after a jury was unable to come to a verdict on the rape charges that a former NYPD cop faced for a random gunpoint sexual assault against a young teacher in Inwood last year.

The jury could not agree on four charges against Michael Pena, including two counts of rape and two counts of predatory sexual assault for the attack in August 2011.

Pena was found guilty Tuesday on three counts of predatory sexual assault and three counts of criminal sex act. Those convictions, which resulted in his immediate firing from the police department, carry a maximum prison sentence of 25 years to life and a minimum of 10 to life, will stand regardless of the partial mistrial.

Lloyd Constantine, a juror in the case, spoke to reporters after the judge declared a mistrial on Wednesday, March 28, 2012. Constantine failed to disclose his connections with Manhattan District Attorney Cy Vance before he took a seat on the jury.
Lloyd Constantine, a juror in the case, spoke to reporters after the judge declared a mistrial on Wednesday, March 28, 2012. Constantine failed to disclose his connections with Manhattan District Attorney Cy Vance before he took a seat on the jury.
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DNAinfo/Trevor Kapp

"It seems that there is deadlock that cannot be overcome," Manhattan Supreme Court Justice Richard Carruthers said minutes before dismissing the panel that has been deliberating since Thursday.

The victim, dressed in black and surrounded by friends and supporters, buried her face and sobbed as the judge announced the mistrial.

“In this brutal attack against an innocent young woman, the defendant showed no mercy," said District Attorney Cy Vance, Jr. "At sentencing, we will recommend that he receive none.”

Vance's office plans to ask for consecutive prison terms for Pena at his May 7 sentencing, but a judge must first decide if that is legally permissible. Generally, if multiple counts stem from the same act, the sentences run concurrently.

Pena’s attorney, Ephraim Savitt, argued throughout the trial that prosecutors overcharged the cop, who was assigned to the 33rd Precinct, when they brought an indictment of rape in the first degree. Savitt repeatedly told jurors and press that there was insufficient proof of penetration during the August 2011 incident.

"He attacked her. He violated her. It doesn't rise to the level of rape, but it's a terrible thing that he did," Savitt said.

Pena did not appear to show emotion as the mistrial was declared, but his lawyer said the former officer "regrets what he did." His lawyer said he has been so stressed and distraught since being jailed in this case that he lost 60 pounds.

"He's become very stoic. It's not that he doesn't have feelings, he just doesn't express them," Savitt explained.

Members of the jury, which consisted of eight men and four women, were instructed to return to court on Wednesday morning, after they told the judge the day before that they could not come to a consensus on the rape counts after three days of deliberation.

On Wednesday afternoon, however, they announced that they had reached an impasse.

Jurors told the judge the day before that deliberations had become "very contentious." It was also revealed Tuesday that one of the jurors, Lloyd Constatine, knew DA Cy Vance, Jr., socially, but neither prosecutors or defense attorneys called for a mistrial on these grounds.

Constantine was also a law partner of Vance's opponent for DA, Richard Aborn, and the juror donated $5,000 to the campaigns of both Vance and Aborn in 2008, according to campaign finance records.

After the jurors were released on Wednesday, Constantine declined to comment on his connection to Vance or about any tension between jurors. But he did say he thought it was a fair trial and that everyone performed their duties well.

''There's no law that says the jury has to reach a verdict,'' Constantine said. "I have not lost any sleep over this."

''This was not fun. It was hard work,'' he added. ''It was long. It was difficult. The nature of the alleged crimes was very painful to the victim, to families and the jury.''

Reached at his home on Wednesday, juror Christopher Aleman declined to comment on the details of the case.

''It's been extremely difficult," he said. "I'm not gonna say anything else.''

And panelist Susan Esterhay called it "a tragic case all the way around."

"There were no winners here," Esterhay added. "I have no other comment. It's too distressing."

On Aug. 19, 2011, Pena, 27, spent the overnight hours drinking at a Washington Heights club, where he tried to pick up a bartender, and later trolled Craigslist in search of sexual partners, according to testimony.

When he came upon the victim, who was on her way to her first day teaching at an Inwood school, he forced her into an alley at gunpoint, Assistant District Attorney Evan Krutoy told jurors.

When the victim recounted the hellish encounter, she said she offered Pena her cell phone, jewelry and wallet, but Pena attacked her, threatening to shoot her if she screamed.

In Upper Manhattan, the case has resonated among residents, leaving several feeling unnerved and vulnerable.

“I leave my apartment at 6:45 a.m. on the days that I work,” said one school teacher in Inwood who asked to have her name withheld due to safety concerns.

“I will never, ever think the same way about leaving my home that early again,” she added. “I know this horrid man is one guy, but it will take me a long time to look at the police as individuals who are there to keep me safe."