The chaos-filled Manhattan trial of an NYPD officer accused of using his service revolver to subdue and rape a young charter school teacher ended in a mistrial on two felony rape charges and two related charges which deadlocked the jury, but with six convictions – mostly involving predatory sexual assault - that are enough to send Michael Pena, 27, to prison for 25 years to life.
Pena’s lawyer, Ephraim Savitt, said he would appeal the convictions on the grounds that the criminal sex act statutes Pena violated are “unconstitutionally vague.” The law, said Savitt is not clear “as to what constitutes the felony of oral and anal sex.”
Manhattan District Attorney Cyrus Vance issued a statement saying he wanted to “commend the victim for her bravery and thank the jury for its service. In this brutal attack against an innocent young woman, the defendant showed no mercy. At sentencing, we will recommend that he receive none.”
Sentencing is scheduled for May 7, but Savitt said he has until April 18 to file his motion to dismiss the verdict. If his motion is denied, “we plan to appeal that denial,” he said.
In the trial, Savitt did not dispute his client’s attack of the woman, but argued for his client’s innocence based on technical interpretations of sex crime laws. The teacher, who was about to begin the first day of a new job on August 19 when Pena, after a night of drinking, calling escort services and hitting on a waitress, forced her into a courtyard behind 83 Park Terrace, telling the 25-year-old woman to “shut the f--- up or I’ll shoot you.”
Two witnesses – one of whom called 911 - testified to seeing the attack. The victim also testified that she was raped, but Savitt maintained that the prosecution had not proved penetration had occurred.
While the District Attorney has the right to bring Pena to trial again to face the rape charges on which the jury was deadlocked, it is unlikely that prosecutors will do so, said Zachary Johnson, a Manhattan attorney who once served as an assistant district attorney in Manhattan. “They already have a lengthy prison term for the defendant,” that is likely to be imposed, he said.
Pena, said Johnson, has been convicted of “a heinous, heinous act. As a police officer, he’s tarnished the reputation of the NYPD. This is the right kind of case for (New York Supreme Court) Justice (Richard) Carruthers to send a message, and in this instance it will probably be to give him the max.”