Delay leads to dismissal of Niskayuna rape charge
Judge: Questioning of suspect put off too long
NISKAYUNA A rape charge was dismissed last week by a judge who found that Niskayuna police took too long to question the identified suspect, a registered sex offender.
In dismissing the case, Schenectady County Court Judge Karen Drago cited a delay of nearly 22 months between the identification of the suspect through a DNA match and the investigators questioning and arresting him.
She ruled that the delay was too long and could have impacted the man’s ability to defend himself in court. She also found no reason for the delay.
“The underlying charge is a very serious crime; however, it appears to be a case in which the complainant cannot identify the defendant,” Drago wrote in her Nov. 20 ruling. “The defendant has alleged that the sexual relations were consensual. The ability of the defendant to produce witnesses in support of his defense would be greatly impaired by this delay.”
The 22-month delay amounted to a denial of due process, the judge wrote, dismissing the case in response to a motion by the man’s attorney, assistant public defender William Nowak.
The rape case was against 40-year-old Schenectady resident Andre Byrd. He was charged in March 2013 with first-degree rape and predatory sexual assault. If convicted, he faced up to 25 years in prison.
He was charged with raping the woman May 28, 2010, in Niskayuna. At the time, the victim alleged she was attacked from behind and did not know her attacker or attackers, according to the ruling. A rape test kit was used to collect DNA evidence.
On May 1, 2011, police received a test report identifying Byrd as the person whose DNA matched the DNA taken from the victim and her clothing, according to a narrative in the ruling.
It was then that the due process clock cited by Drago began ticking.
With the DNA results in hand, investigators moved to re-interview the victim. But that didn’t happen until more than six months later, on Nov. 11, 2011. She could provide no further information.
Then, more than a year after that, on Dec. 4, 2012, “the Niskayuna Police Department asked to be notified by the Schenectady Police Department” when Byrd appeared for his sex offender registration, which was scheduled for Dec. 6, 2012, the ruling reads.
Byrd is a Level 3 sex offender, the highest risk to reoffend, due to a 1993 sexual abuse conviction from New York City, according to the state sex offender site. He is currently registered in Schenectady.
Level 3 sex offenders must report in person each year to have a current photograph taken. They are also supposed to verify their address every 90 days with their local law enforcement agency.
Byrd, though, didn’t show up at the police department until March 7, 2013, three months later. That’s when Niskayuna police questioned and charged him.
“It does not appear that any significant investigative efforts were employed between May 1, 2011, when matching DNA was reported, and the date of defendant’s arrest,” Drago wrote. “There is no indication that any attempt was made to ascertain the address of this registered sex offender.”
Drago cited two arguments from the prosecution as to why the case wasn’t prosecuted earlier: That the victim couldn’t identify her alleged attacker or attackers and that “both the Niskayuna Police Department and the District Attorney’s Office was busy with other cases.”
Drago also cites the prosecution argument that the prosecutor on the case could not discuss it with police because of ongoing trials in other cases.
Exactly when the District Attorney’s Office became involved was not cited in the decision. But Schenectady County District Attorney Robert Carney said Friday his office’s involvement was limited prior to Byrd’s arrest in March 2013.
Drago also noted that there was no information on why police didn’t find Byrd earlier or why, if the first prosecutor was busy, there was no attempt to speak with someone else in the District Attorney’s Office.
Niskayuna Police Chief John Lubrant said Friday that he wanted to speak with the District Attorney’s Office and his own staff further before commenting in detail. Because the case was dismissed, he also did not know how much he could say about it.
In general, he said, “I think that our department has demonstrated a history of prioritizing cases that involve victims of sex offenses and domestic violence, while working within the established standards and protocols for professional investigation of these cases.”
Carney said Friday his office became fully involved in the case only after Byrd’s arrest.
A prosecutor met with police after the DNA match came back in May 2011, Carney said, advising police investigators to conduct more interviews with people at a party the woman attended and then to question Byrd.
He said police investigators spoke with people at the party but didn’t speak with Byrd.
“The bottom line is we’re happy to be consulted, but investigations are primarily police responsibilities,” Carney said.
He said such case dismissals by judges are a court-imposed restriction on investigations but separate from commonly known statutes of limitations. The rape charge filed in the Byrd case has no statute of limitations.
If Drago hadn’t thrown out the case, Carney added, a conviction was no certain prospect, due to the evidence available in the case.
The dismissal means the charge cannot be refiled.
Byrd’s met the decision with relief and gratitude, Nowak said Friday. “It’s important to state that all along my client maintained his innocence, right from the start,” he said. “That’s something that has been consistent.
“I believe it was a just decision, and I’m pleased for my client and that he can move on with his life.”
He also credited work done by Byrd’s earlier attorney, Joe Litz.
Byrd was held in jail for several months after his arrest in March but freed in September.
There is no indication he was ever arrested in connection with missing his deadlines as a sex offender.