Two former NYPD cops acquitted of rape charges want their misconduct convictions thrown out too — and defense attorneys do not want the woman who accused the two of raping her to speak at the next court date.
Lawyers for ex-officers Kenneth Moreno, 43, and partner Franklin Mata, 29,filed papers in State Supreme Court in Manhattan on Tuesday asking a judge to toss their misdemeanor charges for technical reasons.
Defense attorneys also said they wanted to review un-aired footage related to the case from an HBO documentary that featured Manhattan District Attorney's sex crimes unit. The motion filed to have their clients' misconduct conviction thrown out is not related to the documentary.
Defense attorneys said the prosecutors sent them about a dozen clips from the documentary on Monday. None of those were included in the documentary that aired this month.
Joseph Tacopina, Moreno's attorney, said outside the courthouse Tuesday that the footage he had seen so far shows prosecutors and a witness, Edward Tacchi, District Attorney's investigator, talking about the case.
Prosecutors are required to provide the defense with statements of prosecution witnesses before they testify. Tacopina said the defense team might file other motions after they review the complete footage.
Colleen Balbert, lead prosecutor on the case, said the clips in question had not been turned over earlier "due to an oversight."
Moreno, 43, was accused of raping a drunk 27-year-old woman, whom he and Mata had helped get to her East Village apartment in December 2008. Mata, 29, was accused of serving as a lookout.
Both ex-NYPD officers were found not guilty of rape, which sparked outrage across the city. They were convicted on three counts of official misconduct, which carry a maximum sentence of up to two years in jail.
Tacopina said the Probation Department has recommended non-jail sentence for Moreno and Mata.
Both men, who were fired from the NYPD immediately after their conviction, seemed relaxed when they appeared in the courtroom at 9:30 a.m. They chatted with their legal team, while waiting for the judge.
Much of the discussion in the courtroom focused on the woman who accused Moreno and Mata of rape.
"We'd like the complainant here to be able to speak," Balbert said, asking the judge to allow the woman to appear in court during sentencing.
Defense lawyers strongly objected, arguing Moreno and Mata had been acquitted on rape and burglary – counts related to conduct and interaction with the alleged victim. Their misdemeanor convictions for official misconduct are related to their jobs as police officers.
Next to those technical reasons, Tacopina argued, the alleged victim had already been given a chance to speak in court.
"She's had her day. She spoke before the jury," Tacopina said. "They evaluated her testimony. They heard her lie."
The final decision on whether the woman will be allowed to speak on August 8, which has been set as next court date, will be made by the judge.