He’s out of appeals — but he’s still trying to stay out of Rikers.
The highest court in the state has declined to hear the appeal of Kenneth Moreno, the disgraced East Village ex-cop tried in last year’s notorious “Rape Cops” trial — meaning both he and his former partner are now due to turn themselves in and head to Rikers on their official misconduct sentences on Thursday, Dec. 20.
But Moreno is planning a last-ditch stay-out-of-jail effort, his appeals lawyer tells the Post.
“I am presently preparing a habeas corpus writ that’s going to federal court,” the lawyer, Stephen Preziosi, said this morning. “I will be asking a federal judge for a stay of the sentence — So it’s not over.”
The writ will argue that constitutional violations during the “Rape Cops” trial — including Moreno’s longstanding accusations that the lead prosecutor improperly instructed the jury on the law — warrant the overturning of his conviction, the lawyer said.
“That’s a violation of his due process,” the lawyer said. “The other thing is the insufficiency of the evidence for a conviction on official misconduct,” he said.
Both Moreno and his ex-partner, Franklin Mata, had been acquitted in May, 2011 of raping a drunken young fashion executive who they’d been dispatched to help into her East 13th Street apartment.
But both were convicted of three counts each of official misconduct — one for each time the pair were caught on surveillance video using the woman’s keys to re-enter her apartment.
Mata, who prosecutors said played a more minor role of lookout, has been sentenced to serve 60 days jail, meaning 40 days with good behavior. He has exhausted his appeals and will be turning himself in, said his lawyer, Edward Mandery.
Moreno, a married father of two who prosecutors accused as the actual rapist, has been sentenced to serve one year, meaning closer to eight months with good behavior.
“Look, regardless of the outcome of the appeal we’re grateful that justice was for the most part done in this case,” said Moreno’s trial lawyer, Joseph Tacopino.
“Ken would have been serving upward of 25 years if he had been convicted of the top charges, so we’re grateful that this jury — and they were truly remarkable — saw through all the rhetoric.”
Moreno had challenged his conviction on every level possible, starting with the trial judge, Manhattan Supreme Court Justice Gregory Carro, and then hitting the state Appellate Division.
Both Carro and a panel of appellate judges rejected his arguments that the evidence of misconduct was legally insufficient and that prosecutors misstated the law in summations.
In asking the Court of Appeals to reconsider the same arguments, Moreno had added an extra issue — complaining in papers this month that a one year sentence was too much, given that Mata had only got 60 days for the same charge.
“Absurd,” prosecutors argued in opposing papers. Moreno was clearly the leader in the misconduct, motivated by his “romantic” interests in the woman, they argued. The latest decision rejecting Moreno’s application for permission to appeal was issued by Court of Appeals Judge Victoria Graffeo.
Moreno’s latest bid for freedom will be filed either tomorrow or Thursday morning — right on his deadline for surrender, Preziosi said. Asked if Moreno understood the very strong possibility that he’ll have to surrender on Thursday regardless, the lawyer added, “We understand that is a possibility.”
Mata, meanwhile, is resigned to beginning his jail stint, his lawyer said.
“My client was accused of some very serious crimes, and he was acquitted by a highly competent jury who heard all the evidence,” Mandery said. “This last step will bring some closure to the case and allow Frank to move on with his life.”