PRESS RELEASE

Testimony of Richmond County District Attorney Daniel M. Donovan, Jr. before the New York State Senate Codes Committee Public Hearing on the Elimination of the Statute of Limitations on Rape

March 10, 2006

As a prosecutor, there is perhaps no greater satisfaction than obtaining a conviction in a crime which had been written off as a “cold case” due to the passage of time or a lack of evidence at the time of the incident.

This is particularly true in cases of a rape or other sexual assaults, where the passage of time does not provide any solace to the victim and the perpetrator has been free on the streets of our communities to perhaps continue to victimize the innocent.

The emergence of DNA as criminal evidence has given prosecutors a new weapon, and victims a new hope, of solving these most heinous of crimes. Unfortunately the statute of limitations, as laid out in New York State’s criminal law, does not adequately recognize this revolution in technology.

Under current law, a prosecution for a crime of rape or serious sexual assault must be commenced within five years of the occurrence. The statute of limitations may be extended to ten years if, according to the law “the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence.”

In these cases, when a defendant is indicted for a crime, beyond the five year statute of limitations, the burden falls on police and prosecutors to demonstrate before a judge at a pre-trial hearing that they were continually looking to identify him and his whereabouts.

In these instances, it is at a judge’s discretion to determine if law enforcement acted with “reasonable diligence” or if the charges should be dismissed and the accused freed. To avoid this possibility, prosecutors may be forced to enter into plea agreements which guarantee a conviction and jail time, although much less jail time than would be imposed had the defendant been convicted at trial.

My office was forced to make such a decision last November.

In July 1994, a homeless woman was brutally raped and assaulted in a wooded area near the Clifton Train Station on Staten Island. A rape kit, containing DNA evidence was collected at the time of the assault; however it could not be immediately linked to a perpetrator and the case went unsolved.

In, July 2004, as a part of New York City’s John Doe DNA Identification Project, aimed at bringing sexual predators to justice, my office indicted this DNA profile as a “John Doe” after it was matched to another kit in New York State’s DNA database. This indictment, filed less than a week before the tenth anniversary of the crime, essentially “stopped the clock” on the statute of limitations. Just a few weeks later that DNA was identified as being that of 46 year old Joseph Pellegrino, an ex-con, who was later arrested in Brooklyn. He was returned to Staten Island to face charges which could have left him in jail for up to twenty-five years.

While my office was prepared to take Joseph Pellegrino to trial with DNA evidence and decade-old recollections of the victim, the obligation of proving “reasonable diligence” was an immense hurdle in taking the case past the five year statute of limitations as well as a major risk to proceeding with the case. Had we failed to do so, even though the victim identified the perpetrator, and the defendant was linked to the crime by DNA, the charges versus Pellegrino would have been dismissed.

In light of that fact, my office entered into an agreement in which Pellegrino would plead guilty to a charge of attempted rape in the first degree. This plea resulted in a jail term of two to six years in prison at his sentencing date.

This sentence does not offer the punishment of the twenty-five years in jail he faced at trial, but it does see to it that justice is served for the victim in that July 1994 attack.

The current statute of limitations places prosecutors in this precarious position. Legislation is currently pending in the State Legislature which would abolish the statute of limitations for first degree rape and criminal sexual act, sex crimes that involve the use of force or extremely young victims. Such a change to our laws is not without precedent. Our system of justice recognizes that some crimes, such as kidnapping and murder, are so heinous that to impose a time limitation to prosecute the case would itself be an injustice.

Senator Klein, the bill that you have introduced, along with its’ companion , authored by Assemblyman David Koon, reflects the necessity for an immediate change to the statue of limitations on the Class B felony sex offenses Rape in the First Degree and Criminal Sexual Act in the First Degree. However, these bills could go further to assist prosecutors in protecting our communities by also eliminating the statute of limitations for the two remaining Class B felony sex crimes of Aggravated Sexual Abuse in the First Degree (PL 130.70) and the Course of Sexual Conduct against a Child in the First Degree (PL 130.75). These additional crimes, just as horrific as those already named in your bill, were included in Assembly bill A8404, which was introduced by former Assemblyman Scott Stringer last year. I urge you to consider amending your legislation to reflect this.

The issue of eliminating the statute of limitations for serious sex crimes is a non-partisan issue for those of us concerned with seeking justice for our victims. We all must agree that if additional sexual predators are allowed to escape justice due to the passage of time, all public officials will have failed our citizens.

Sex crimes victims don’t forget after 5 or 10 years. Neither should our system of laws. By removing the statute of limitations, not only will New York’s most dangerous sexual predators be held accountable for their acts, but we will also be sparing the immeasurable pain and trauma of others who would have been their victims.

Each day that passes additional sexual predators are escaping prosecution and their victims are being failed by the system.

When notified of Joseph Pellegrino’s arrest, the victim of that brutal rape, a decade later and now living in The Bronx, asked the detectives from my office: “What took you so long?” If these bills are not immediately enacted into law, perhaps we can ask the same question of our legislators.

-end-

Contact: William J. Smith, Communications Director
(718) 556-7150
William.Smith@rcda.nyc.gov