BY CHRISTINA CARREGA and JAMES FANELLI
(NEW YORK DAILY NEWS) He’s home for the holidays.
Guyana-born Mark Denny, 47, has spent the past three decades behind bars for a brutal rape and robbery he didn’t commit.
But last week he received the greatest gift of all — his freedom.
The Brooklyn District Attorney’s Office said Wednesday morning that it had moved to vacate Denny’s conviction and dismiss the indictment after an investigation revealed faulty witness identification.
Even with his innocence established, Denny still faces some legal hurdles. As a child, he came to the United States from Guyana as a lawful permanent resident.
While in prison, he was ordered to be deported due to his convictions. Now the Cardozo Law School’s Immigration Justice Clinic is working to reopen his case and prevent his removal from the country.
Denny was accused with three other defendants of a late-night gunpoint robbery and rape at a Burger King in Kensington on Dec. 20, 1987.
Denny was convicted in 1989 and sentenced to 19 to 57 years in prison. He always maintained his innocence throughout — even through parole hearings. Gonzalez said Denny staying committed to his innocence and refusal to participate in a sex offender program likely hurt his parole chances.
Later Wednesday, Denny appeared before Brooklyn Supreme Court Justice Matthew D’Emic, who made his exoneration official. After the decree, Denny smiled and waved to his family and friends who filled the court gallery.
“I’m overwhelmed thinking of what I’ll do next to get my life back on track,” he said after walking out of the courthouse an innocent man.
“I have no ill feelings towards the victim. Going to prison was a traumatic experience mentally. There’s a lot of people in my position. I appreciate everyone for all they have done for me.”
Denny was the 24th person to have his conviction vacated by the DA’s Conviction Review Unit. Brooklyn DA Eric Gonzalez said his review team examined evidence and interviewed witnesses as well as Denny’s co-defendants in the case.
“After a lengthy and extensive investigation into this horrific case, I have concluded that the cause of justice requires that we vacate the conviction of Mr. Denny,” Gonzalez said in a statement.
Denny was exonerated with the help of the Innocence Project, which had been working on his case since 2009.
“Mr. Denny has been waiting for this day for a very long time,” said Nina Morrison, senior staff attorney for the Innocence Project.
“We owe a tremendous debt of gratitude to District Attorney Eric Gonzalez and members of his conviction review unit for recognizing Mr. Denny’s innocence and taking extraordinary steps to right the wrongs that kept Mr. Denny incarcerated for his entire adult life.”
Denny and the three others were accused of forcing their way into the restaurant after closing and holding two employees — an 18-year-old woman and a male — hostage. They ordered the two employees to undress, took $3,000 from a safe and then raped and sodomized the woman in a back room.
The victim had a blindfold over her eyes during a portion of the attack and may have passed out.
Denny became a suspect in March 1988 after he was busted two months earlier for gun possession. He had been arrested in a car with the three other defendants, who were wanted for robbing a Manhattan Burger King.
The problems in identifying Denny began right away.
Detectives showed the victim of the rape a picture of Denny, but she did not identify him. Two days later, she was able to identify him in a lineup.
But during Denny’s trial, the victim was vague in her description of him and his actions.
Dr. Jennifer Dysart, a John Jay College psychology professor whom the DA hired as a consultant to examine the case, said the victim’s witness reliability was likely affected by her limited opportunity to see her attackers, the existence of a gun, the extreme stress from the attack and the time lapse between the incident and the identification process.
“The combination (of) all these factors significantly decreased the likelihood that an accurate identification could have been made by the victim in this case,” Dysart said.
Gonzalez said he did not fault the police investigators or the victim, noting that “little was known back then about memory retention and retrieval, and their effect on eyewitness identification.”
The DA said that other factors contributed to vacating the conviction. He said Denny’s fingerprints were also not found at the crime scene. However, two of his co-defendants’ prints were recovered at the Burger King.
One defendant, Raphael James, was convicted by a jury and was sentenced to 16 to 48 years in prison. He was paroled in 2015. The other had his case dismissed during a second trial because the victim was emotionally unable to testify.
The third co-defendant, Eddie Veira, admitted his involvement and pleaded guilty.
Denny’s co-defendants all told the DA’s conviction review unit that Denny was not involved. The defendant whose case was dismissed even admitted his culpability to the Conviction Review Unit but maintained Denny wasn’t there, Gonzalez said.