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VanDyke Perry

Other New York DNA Exonerations
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On May 7, 2018, Gregory Counts and VanDyke Perry were exonerated of a 1991 rape and kidnapping in New York City by DNA tests and their accuser’s admission that no rape and kidnapping ever occurred.

The dismissal of the charges culminated a several year re-investigation of the case that began in 2012. Counts, who was serving a prison term of 16 to 48 years, wrote to the Innocence Project in New York in 2010 asking for help and in 2011, the Innocence Project agreed to take up his case. Ultimately, the Office of the Appellate Defender, representing Perry, who had been paroled in 2001 after serving more than 10 years in prison, joined with the Innocence Project to request that the New York County District Attorney’s Office Conviction Integrity Program re-investigate the case.

In April 2018, after new DNA tests had identified sperm in the accuser's underwear as belonging to a man who died in 2011, the woman admitted her account was fabricated.

The lie began on January 18, 1991, the woman said, after she had smoked crack with a john all day, had sex with him in exchange for money, but he had not paid her. The woman said her boyfriend would make her prostitute herself and had beaten her previously when she came home without money. She lied about being raped because she feared her boyfriend would beat her.

In the early morning of January 18, the woman flagged down a police officer and reported that she had been abducted and raped. At the hospital, she said three men had kidnapped her and driven her to Central Park, where she was repeatedly raped and sodomized inside and outside the car. The attackers were drug dealers, she said, who were trying to find her boyfriend to collect money he owed them.

She subsequently identified 21-year-old Perry, 19-year-old Counts, and a third man as her attackers. Perry was arrested on January 22, and Counts was taken into custody on January 26. The third man was never arrested, although police knew his identity. Police never seized or searched the third man’s car for fingerprints, semen, hair or other evidence even though the car was parked in his yard and the woman claimed that much of the sexual assault occurred in that vehicle.

On the same day the woman reported that she was raped, her boyfriend was arrested for shooting Perry in the foot. That shooting had occurred a few months earlier after Perry, Counts, and the third man beat up the boyfriend for a drug debt. (The charges against the boyfriend for shooting Perry would eventually be dismissed.)

Before trial, DNA tests on sperm from the woman’s underwear excluded both Perry and Counts. After the prosecution informed the woman of the test results, she then claimed she had unprotected sex with her boyfriend just prior to being abducted and raped—although she had told the doctor at the hospital that they used condoms. As a result, the prosecution argued to the jury that the sperm in the woman’s underwear belonged to her boyfriend.

When Perry and Counts went to trial in March 1992 in New York County Supreme Court, the woman failed to appear. She was located and brought to court on a material witness warrant, where she identified them as her attackers. The woman gave a graphic account of being kidnapped by the three men. She testified that she was driven in the third man’s brown car to Central Park, where she was repeatedly raped and sodomized after she refused to reveal the whereabouts of her boyfriend.

Her story had numerous inconsistencies—she told the doctor at the hospital that she was raped in Morningside Park, but told the police the attacks occurred in Central Park. She gave varying accounts of how many times each attacker raped her and the manner of the assaults. She said Counts, who was 6 feet 4 inches tall and weighed 260 pounds, had punched her in the face repeatedly. The physician who examined her, however, found no injuries or trauma to her face or body.

The defense attacked the woman’s credibility, argued the woman fabricated the assault to protect her boyfriend and pointed to the DNA exclusion as proof that Counts and Perry were innocent. The prosecution argued that the DNA belonged to her boyfriend.

On March 16, 1992, Counts and Perry were convicted of rape, sodomy, and kidnapping. They were acquitted of criminal possession of a weapon. Counts was sentenced to 16 to 48 years in prison. Perry was sentenced to 7 to 14 years in prison.

Their convictions were upheld on appeal. Perry was released on parole on November 9, 2001. Counts remained in prison. He refused to participate in a sex offender program or admit his involvement in the crime.

While in solitary confinement, Counts obtained from the prison library a copy of “Actual Innocence,” a book by Innocence Project co-founders Barry Scheck and Peter Neufeld, and reporter Jim Dwyer. Counts asked the Innocence Project to investigate his case.

In 2012, the Innocence Project contacted the New York County District Attorney’s office seeking assistance in locating the physical evidence in the case—the rape kit and the woman’s clothing. In 2013, Counts filed a motion for DNA testing. In May 2014, the prosecution agreed to allow DNA testing to be conducted.

The tests were performed in 2015. A male DNA profile from the samples remaining from pre-trial analysis of the sperm recovered from the woman’s underwear excluded Counts and Perry. The profile was submitted to the FBI DNA database and was matched to the DNA of a man who was about 40 years old in 1991—when the woman said she was raped—and who had died in 2011.

In August 2016, investigators from the New York County District Attorney’s office tracked down the woman and showed her a photograph of the man whose DNA was on her underwear. They explained it that might be the third man, who had never been arrested for the rape.

The woman said she did not recognize him. The investigators said that because the man’s DNA was found on her underwear, it either came from the third attacker or a consensual sex partner, but she insisted again she did not recognize the man.

She then told the investigators that she had been living on the street at the time and had done a lot of things she was not proud of to survive. Asked to explain, she admitted she had a drug habit and would sell herself to pay for her drugs. She said that it was possible that the man was someone with whom she had "hooked up." She then refused to speak further with the investigators.

In 2017, the New York County District Attorney’s Conviction Integrity Program began a joint re-investigation of the case along with the Innocence Project and the Office of the Appellate Defender. On August 14, 2017, Counts was finally released on parole.

In February 2018, the third man who had been named by the woman in 1991 was finally located. The man said he never raped anyone and that he had spent much of his life fearful of being arrested for a crime he did not commit. He said that he had a brown car (the car the woman said was used to kidnap her) and it was inoperable at the time. The car was a small two-door vehicle and virtually the entire back seat was occupied by a large stereo speaker.

The man confirmed that he, Perry, and Counts had beaten up the woman’s boyfriend for failing to pay a drug debt, and that the boyfriend had shot Perry in the foot after the confrontation.

On April 24, 2018, an assistant district attorney and an investigator met with the woman in her home. She recalled how Perry and the two others beat up her boyfriend. She claimed they threatened to kill them both.

She said her boyfriend would “pimp her out” to trade sex for money. One night, she said, he beat her when she did not get paid and she came home without money. She said that the boyfriend said “their problems would go away" if she accused them of raping her. She said her boyfriend planned it all out and told her what to say because he owed drug money to them.

The woman said she didn’t come to the trial at first because she did not want to perjure herself. But she admitted that after she was brought into court, she did falsely testify. The woman said, “Don’t think this doesn’t haunt me. I apologize to them (Perry and Counts)…I was getting beat and I’m not that person any more.”

In a follow-up interview on April 28, 2018, the woman said, “What can I talk about except the shame that I have. I mean, what else is there to ask me? It never happened.”

On May 7, 2018, New York County District Attorney Cyrus Vance, Jr., along with attorneys for the Innocence Project and the Office of the Appellate Defender filed a joint motion to vacate the convictions of Perry and Counts and dismiss the indictment. “The newly discovered evidence of the…DNA test results and the complainant’s recantation…her admission that she fabricated the kidnapping and sexual assaults establishes that the defendants did not commit the crimes of which they were convicted and that, in fact, no such crimes occurred,” the motion said.

Presiding Judge Mark Dwyer then vacated the convictions and dismissed the charges.

– Maurice Possley

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Posting Date: 5/10/2018
State:New York
County:New York
Most Serious Crime:Sexual Assault
Additional Convictions:Kidnapping, Other Violent Felony
Reported Crime Date:1991
Convicted:1992
Exonerated:2018
Sentence:7 to 14 years
Race:Black
Sex:Male
Age at the date of crime:21
Contributing Factors:Perjury or False Accusation
Did DNA evidence contribute to the exoneration?:Yes*