A woman who said she was raped by an on-duty police officer as his partner stood as lookout was so drunk at the time of the attack — her blood alcohol was more than three times the legal limit — that she was powerless to stop it, prosecutors said Monday at the opening of the criminal trial.
The 27-year-old remembers certain things about that night in December 2008, said Assistant District Attorney Randolph Clarke Jr., like the sound of Velcro, and the feeling that someone was pulling her stockings off as she laid face-down on her bed.
She had been escorted upstairs to her apartment by two officers after her taxi driver called police. She had trouble paying and getting out of the cab after a night out drinking with friends. She remembers some details — flashlights, someone offering her water as she was in her bathroom. But much of the night is hazy at best because she was not conscious enough to remember, Clarke said.
She awoke the next morning naked, save for her unclasped bra, on top of her bed.
"She wakes up to remember being raped by people she was supposed to call when these things happen," Clarke said, calling their actions "repugnant" and "perverse."
Officers Kenneth Moreno and Franklin Mata have pleaded not guilty to rape, burglary, official misconduct and falsifying business records. Moreno's attorney, Joseph Tacopina said in his opening statement that the charges against his client are a "moral outrage."
Moreno is accused of raping the drunken, semiconscious woman while Mata acted as a lookout.
"Whatever she thinks is not accurate," said Tacopina, arguing she was too drunk to remember portions of her evening before she ever encountered the officers. Tacopina suggested she had alcohol-induced blackouts — which meant she was conscious — and was flirtatious and eager for the officers to stay, but doesn't remember it.
Tacopina said she and Moreno had "physical contact," but not sex.
The woman, who was working at the Gap and planning to move to California at the time of the incident, is planning to testify, prosecutors said. There is no DNA linking the officers to an attack.
Prosecutors said Monday there is other medical evidence to show the rape. Surveillance video outside her East Village apartment shows the officers helping her upstairs, and they repeatedly returned for periods of a half-hour or more, ultimately spending an hour there during their last visit, starting at 4:11 a.m.
During that time, Clarke said, they pretended to be responding to other calls as they went back again and again, while radio dispatchers looked for them. Mata's memo book, used to record details of their tour that night, mysteriously disappeared.
"So, not only were they committing crimes, they were shirking duty as well," he said.
The woman, worrying that if she called 911 the officers would find out, instead reported the incident to the Manhattan District Attorney's office. Working with investigators, she taped two conversations with Moreno. In their face-to-face meeting, he said he had used a condom, Clarke said. In that same recording, though, he also denies that they had sex, even after the remark about the condom.
Tacopina sought to discredit the woman and her story, saying she was filing a $60 million lawsuit against the city after the incident and has a reason to want to convict the officers. He argued that she had an alcohol tolerance that would make her more lucid despite her blood alcohol content at between .24 and .32. The legal limit is .07.
"What she does not recall is more important than what she does," Tacopina said.
Tacopina said Moreno, himself a recovering alcoholic, was trying to help the woman because he thought she may have a drinking problem. He said they returned because she asked them too, and that she had become flirtatious.
"And he made an impulse decision and succumbed to physical contact," Tacopina said. "But he did not have sexual intercourse."
Mata's defense attorney was set to give opening statements later Monday.
The officers have been suspended pending a departmental review that will occur after the trial. Moreno, 43, has been an officer for about 17 years. Mata, who is in his late 20s, has been an officer for about five years.
If convicted of rape, the officers face up to 25 years in prison.