Mark Denny - Mistaken Identity

Denny, Mark ; sexual assault, robbery; NRE: mistaken witness identification; "OVERWHELMING"

[576:304]; 2nd Dept. 11/2/91; affirmed

"[I]n view of the overwhelming evidence against [Denny]..."

['Justices' Vincent R. Balletta, Albert M. Rosenblatt, David S. Ritter, and John Copertino signed off on this. (Balletta also clamed the evidence against Jeffrey Deskovic [below] was 'overwhelming.')]

"[O]n March 17, 1988, when the complainant was shown a photographic array containing a picture of [Denny], she was unable to identify him as being one of the men who had assaulted her during the course of a restaurant robbery that took place on December 20, 1987. However, two days later[,] on March 19, 1988, the complainant identified [Denny] from a lineup as one of her assailants. At the trial, there was evidence that before the complainant viewed a photographic array a detective told her that the police thought they had one of the perpetrators, that his name was Mark Denny, and that they wanted the complainant to look at the pictures."

2003 WL 2220751; E.D.N.Y. 7/25/03; writ denied as time-barred

"The evidence showed that in December 1987 [Denny] and three others robbed, at gunpoint, a Burger King restaurant in Brooklyn. In the course of the robbery, they forced two employees of the restaurant [one male and one female], to undress, also at gunpoint. [Denny] and his codefendants then repeatedly raped and sodomized [the female employee]. They also compelled [the male employee] to attempt to have sexual intercourse with [the female]. Later [she] gave a detailed description of her attackers. [Denny] had previously been arrested in a robbery of a Burger King in Manhattan, along with Raphael James, one of his codefendants in this case.

"In his second 440 motion, [Denny] claimed that: 1) a statement by his codefendant and cousin Raphael James, asserting that [Denny] was not involved in the robbery and rapes, was newly discovered evidence entitling him to a new trial; and 2) he was entitled to DNA testing..."

"There can be no claim of innocence. All other possible claims are frivolous in light of the overwhelming evidence against [Denny].

[This opinion was written by Senior Judge Weinstein. ]

NRE synopsis (by Maurice Possley):

"On December 20, 2017, nearly 30 years after he was convicted as a teenager of the rape and robbery of a restaurant worker in Brooklyn, New York, Mark Denny was exonerated and released from prison.

"Denny's conviction was vacated and the charges were dismissed on the ground of actual innocence following an investigation by the Kings County District Attorney's Office Conviction Review Unit. The prosecution's investigation came after lawyers for the Innocence Project, who had been working on his case since 2009, asked that the conviction review unit examine the case.

"The crime occurred about 2 a.m. on December 20, 1987, when two masked men approached a Burger King restaurant in Brooklyn as employees were closing and forced them to reopen. Inside, a male employee was locked in a storeroom after being forced to disrobe. The two men forced an 18-year-old female employee to undress and then raped her in a back room. At some point, a third man entered the restaurant. The male employee told police that the men forced him to sexually assault his co-worker.

"The assailants then fled with $3,000 in cash receipts taken from the restaurant safe.

"On January 8, 1988, police stopped a car containing Denny, who was 16, and three others in Manhattan. A gun was found under the driver's seat. The driver of the car was Raphael James, who was Denny's cousin. James and two other occupants, Eddie Viera and Mark Smith, were suspects in an earlier Burger King robbery in Manhattan. Because Denny was in the car, he became a suspect as well.

"In March 1988 Denny, James, Viera, and Smith were charged with the Brooklyn Burger King robbery after the 18-year-old female employee identified them, even though she was blindfolded during part of the attack and had consistently said only three men were involved. After Denny was identified by the police as a suspect, her account changed to allow for the possibility of four assailants. They were charged with first-degree rape, first-degree sodomy, first-degree coercion, and robbery.

"A detective asked the women to view a photographic lineup, explaining that they had one of the attackers and that his name was Mark Denny. Nevertheless, after viewing the photographs, she did not identify Denny. Two days later, however, the woman viewed a lineup and then identified Denny as one of her attackers. Denny was the only person who appeared in both the photo and live lineups.

"The male employee only viewed Denny in a live lineup, but did not identify him. At trial he did not identify Denny and continued to maintain that only three men were involved.

"Smith and Viera pled guilty and were sentenced to prison. James and Denny went to trial in Kings County...Denny's grandmother testified that he was at her home in Queens at the time of the rape and robbery. Nevertheless, after a two-day trial, both were convicted, primarily based on the woman's identification. Denny was sentenced to 19 to 57 years in prison.

"Six days after he was convicted, Denny pled guilty to possession of the gun found in the car in January 1988, although he insisted that he did not know the gun was in the car. He was sentenced to one year in prison to be served concurrently with his sentence for the rape and robbery case.

"In 1997, after Denny's conviction was upheld on appeal, he filed a federal petition for a writ of habeas corpus seeking a new trial based in part on a statement from James that Denny was not involved in the crime. James wrote a letter saying that he committed the crime with Viera and Smith, and that 'My conscience has been haunting me for years.'

"The petition, however, was denied.

"Viera, James, and Smith eventually were released on parole. Denny was denied parole because he refused to admit that he was involved in the crime.

"In 2009, the Innocence Project began investigating Denny's case. After a search for physical evidence that could be submitted for DNA testing was unsuccessful, Innocence Project lawyer Nina Morrison submitted a lengthy presentation to the conviction review unit requesting an investigation.

"During that investigation, the conviction review unit consulted with an expert in eyewitness identification. The expert concluded that the woman's identification of Denny was problematic because she was blindfolded for part of the crime and because of the trauma of the attack. The passage of three months from the time of the attack until she viewed the lineup also was a factor that might have contributed to a misidentification, the expert said. In addition, the expert concluded that the police detective's actions in showing the victim Denny's photo and then proceeding to show her a lineup in which Denny was again present was highly suggestive and contaminated the woman's memory.

"In addition, Viera and Smith joined James in saying that Denny was not involved in the crime.

"At the conclusion of the hearing on December 20 when Denny was freed, Kings County District Attorney Eric Gonzalez said Denny's wrongful conviction 'happened because little was known back then about memory retention and retrieval, and their effect on eyewitness identification.'"

"[In 2020, Denny] settled with [the City of New York] for $9.75 million.

"In 2021, Denny settled a claim for compensation in the New York Court of Claims, receiving an award of $4.75 million."

[All emphases added.]