Metro

Appeals panel upholds misconduct convictions of ex-cops who were acquitted of rape

A panel of state appellate judges today upheld the misdemeanor convictions against the two ex-officers tried in last year’s notorious “Rape Cops” trial.

The ruling means Kenneth Moreno and Franklin Mata, who were acquitted of more serious rape and burglary charges, must now serve their respective jail sentences for three counts each of official misconduct — one for each time they re-entered a drunken fashion executive’s East 13th Street apartment four years ago after first helping her home.

They will most likely be jailed on their next court date, which has yet to be set, both of their lawyers told The Post.

Moreno, characterized by testimony as the lead officer in the misconduct case, will serve a sentence of one year in jail, or seven months with good behavior. Mata will serve 60 days, or 40 days with good behavior.

Both had remained free following their May 2011 conviction pending today’s decision.

Their lawyers had argued on appeal that prosecutors failed to prove that the cops received a specific benefit — such as cash, or a free meal — in re-entering the woman’s home.

They also argued that the DA misinstructed jurors during summations, by telling them that the specific benefit was simply that the cops got to “hang out” at the apartment.

The panel found that “in her summation, the prosecutor misstated the law regarding the ‘benefit’ element of official misconduct by suggesting that mere neglect of duty would qualify as a benefit,” the appellate judges wrote in a decision issued just after lunch.

But that error did not warrant reversal, they wrote, given that jurors were properly told by the trial judge, Manhattan Supreme Court Justice Gregory Carro, that the summations were not evidence, and were then given the proper instructions on the law for official misconduct.

Moreno’s lawyer, Joseph Tacopina, and Mata’s lawyer, Edward Mandery, declined to comment on the judge’s decision.

“We find that the verdict was based on legally sufficient evidence,” the appellate judges wrote.

“To establish the crime of official misconduct, [prosecutors] had to prove that each defendant committed an act “relating to his office” that constituted an “unauthorized exercise of his official functions,” that he knew the act was unauthorized, and that he acted with the intent to obtain a benefit,” the judges wrote.

“An action taken by a public servant that is “completely unrelated to his [or her] position” is not “within the scope of [his or her] real or apparent authority,” they wrote.

“Defendants were police officers who initially responded to a taxi driver’s 911 call reporting an intoxicated passenger who was unable to get out of the cab. Defendants assisted the passenger in getting out of the cab and escorted her to her apartment,” they wrote.

“Although not assigned to do so, and while giving their command false information as to their whereabouts, defendants returned three additional times that night to the complainant’s apartment,” the judges wrote.

“While the events that occurred in the apartment are in dispute and were the subject of charges of which defendants were acquitted, the evidence establishes that each defendant’s intent was, at least, to socialize with the complainant with a view toward sexual intercourse, or to assist his partner in doing so.”

The cops had returned to the woman’s apartment while in uniform and on duty, their initial conduct was in response to a 911 call, and the cops had even falsely assured the woman’s neighbor that they were investigating reports of a prowler — all evidence that the cops’ misconduct related to their official duties, the judges wrote.