Metro

Defense for cops cleared of rape goes on offense vs. accuser

The defense wants to bar the accuser from speaking at sentencing; probation officials are recommending no jail; prosecutors are admitting to an “oversight” involving raw footage from an HBO documentary that may result in a mistrial request.

Today’s court date for two disgraced officers cleared of rape charges — originally their sentencing date on misdemeanor misconduct — was a whirlwind of news and activity, seemingly everything but the sentencing itself.

Among the biggest in the flurry of bombshells was that after conducting an investigation of the case — including interviewing both ex-cops — state probation officials have recommended to the judge in sealed pre-sentencing papers that the pair receive probation, not jail.

But much is slated to be decided before then.

Manhattan Supreme Court Justice Gregory Carro set August 8 as the new date when disgraced ex-cops Kenneth Moreno and Franklin Mata will be sentenced on three counts each of official misconduct, stemming from their three caught-on-video return visits to the East Village apartment of a drunken fashion exec they’d been dispatched to help on a morning in 2008.

The judge today said he will rule by then on some pivotal matters, among them the accuser’s desire to speak at the sentencing.

Lead prosecutor Colleen Balbert said in court today that the woman, who now lives in California, wishes to be heard before the judge decides the ex-cops’ sentence — which by statute can be anywhere from zero time to two years.

But defense lawyers — Joseph Tacopina for Moreno and Edward Mandery for Mata — argue that since the ex-cops were acquitted of rape and burglary, and convicted only of a misconduct charges in which the victim is the NYPD, that the accuser is no longer a victim under the letter of the law.

As such, she has no right to be heard at sentencing — especially not in a misdemeanor case where even actual victims have no absolute right to speak, the lawyers argued.

The judge will also decide by the new sentencing date whether to toss the official misconduct convictions out entirely, as requested by the defense in motions filed today.

The convictions are defective, the motions argue.

Jurors had been instructed that to find the cops guilty of official misconduct, they had to agree that there was both a dereliction of duty and a “benefit” received as a result.

But prosecutors had described to jurors in closing arguments a scenario where the benefit and the dereliction were one and the same — that the cops got to “hang out” at the accuser’s apartment rather than patrol the streets.

“You can’t say that the ‘hanging out’ was both the dereliction and the benefit,” Tacopina told reporters after court.

Finally, both sides are gearing up for a flurry of paperwork exchanges regarding an HBO documentary on the Manhattan DA’s sex crimes unit that ran earlier this month.

In communications on Friday and yesterday, prosecutors alerted the defense that raw footage from the documentary shoot included discussions by Balbert and others regarding the officers’ case, and that due to an “oversight” the footage was never forwarded to the defense.

Tacopina said today that some of the footage memorialized Balbert talking to a witness who in the case — the matter’s chief DA investigator, Edward Tacchi. As such, it was required by statute to have been turned over to the defense prior to Tacchi taking the stand. Both defense lawyers said that because of the apparent error, they may ask for a mistrial on the misconduct charges.