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Scott Fappiano

Other New York DNA Cases
At about 1 a.m. on December 1, 1983, an armed man broke into the Brooklyn, New York apartment of F.S., his wife, T.S, and their six-month-old son. The assailant used a telephone cord to tie up F.S., a New York City police officer, and then repeatedly raped and sexually assaulted T.S., who was 25 years old.

The attack lasted about 40 minutes. The assailant did not wear a mask or gloves. He stopped the attack at times to smoke a cigarette and grab a beer from the refrigerator. He stubbed the cigarette in an ashtray.

After one sexual assault ended, the woman asked to use the bathroom. She got up, quickly put on a towel and ran out of the apartment to call for help. The assailant grabbed his jacket and the beer and ran off. T.S. returned to the apartment and untied her husband. They called 911 and also indicated that an officer needed assistance.

T.S. would later testify that approximately 50 officers arrived at the apartment. “It was just a zoo,” she would say. T.S. was taken to Lutheran Medical Center, where a doctor examined her and collected samples for a rape kit. She left the hospital a few hours later and was interviewed by Detective Clyde Dunbar. T.S. had gotten a good look at her assailant, and she described him to Dunbar as about 5’10”, 160 pounds, with dark hair and an olive complexion. She said he was soft-spoken, with jeans, a black leather jacket, and keys that kept jangling from his belt. Her husband was unable to give a description.

It isn’t clear whether T.S. looked at photos of possible assailants with Dunbar. His initial report said she didn’t. Years later, Dunbar told investigators with the police department’s Internal Affairs Bureau (IAB) that she did, but he would also later say that the IAB report was wrong.

After meeting with Dunbar, T.S. met with Detective Frank Sciallo. He showed her mugshots from a file cabinet at the 68th Precinct. T.S. did not identify anyone, and Sciallo would later say he told Dunbar about the viewing, although the results were not included in Dunbar’s report.

Around 8 a.m. on December 1, T.S. described the attack to Detective Helene Gottlieb, who was a specialist in sex crimes and became the lead investigator. Gottlieb would later say that T.S. was very precise and detailed in her description of the assailant. In her report, Gottlieb wrote that T.S. said that the assailant “pulled his pants down” and that “[e]very time after every sex act, [the assailant] would zipper his pants up and then unzip them. There were a lot of keys jingling on the left side of his pants.”

Gottlieb and T.S. then looked at photos, which were organized by height, age and race. T.S. selected one photo, put it aside, then selected another photo. They were both of 21-year-old Scott Fappiano. Sciallo would later give conflicting accounts of whether T.S. looked at a photo of Fappiano when she was with him. In one account, he said she did. In the other, he said she didn’t.

Fappiano was already known to Gottlieb and her colleagues in the sex- crimes unit. He had been previously arrested on a charge of rape and acquitted at trial, in part because the victim in that case had not mentioned Fappiano’s extensive tattoos on both legs. Gottlieb’s report detailing her interview with T.S. did not include any reference to tattoos. In addition, Fappiano was only 5’ 5”, much shorter than T.S.’s description of the assailant.

On December 5, 1983, T.S. and F.S. looked at photo arrays, after an assistant district attorney mentioned another man with a criminal record who looked similar to Fappiano. T.S. looked at an array that excluded Fappiano and included the other man. She did not select anyone. F.S. looked at an array that included both men. He selected Fappiano.

The police conducted a live lineup the next day. Fappiano came in voluntarily, and T.S. selected him as the assailant, noting his position as number 4 in the six-person lineup. Prior to F.S. viewing the lineup, Fappiano switched seats. F.S. first selected number 4, but his selection was crossed out and switched to another number. T.S.’s viewing was recorded. F.S.’s was not.

Police arrested Fappiano that day. A grand jury later indicted him on charges of first-degree rape, first-degree sodomy, first-degree sexual abuse, first-degree burglary, first-degree unlawful imprisonment, and criminal use of a firearm.

Separate from the identifications, the police collected evidence from the crime scene on two separate visits. The first occurred at 3:25 a.m. on December 1. Two officers took photographs and dusted for fingerprints, collecting 12 usable prints. They identified T.S. as the source of two of the prints. Fappiano was excluded as a source of the others.

Later that day, T.S. and F.S. returned to the apartment with Gottlieb. They collected a bottle opener and beer cap, the jogging pants worn by T.S. prior to the rape, a bra the assailant had sucked, a brown towel and a white towel, and the bed sheets. They also collected five cigarette butts. Four were Newports, the brand smoked by T.S. and F.S. The fifth was a Salem. Gottlieb would note in her report: “Cigarette butts allegedly smoked by the perpetrator were recovered.”

The police department’s crime lab conducted forensic testing on this evidence. At the time, DNA testing was unavailable, but forensic analysts could test for the presence of semen and also for blood types.

The New York Police Department tested for the presence of semen in rape kits by conducting an acid phosphatase test. While it was possible to just test part of the sample, the department’s general practice was to submerge the entire sample into the acid phosphatase. While detecting the presence of semen, this method corrupted the sample and prevented blood typing. Dr. Robert Shaler, the director of serology in the city’s Office of the Chief Medical Examiner, had warned the police department about the flaws in this approach, but the practice persisted.

A forensic analyst tested the rape kit, the jogging pants, bed sheets and bra by submerging samples in acid phosphatase. He reported that the testing showed the presence of sperm in the rape kit and the jogging pants. The white towel also showed the presence of sperm, although its testing didn’t consume the entire sample.

There was no indication of any problems with these items. Although they had not yet been tested, the white towel and the cigarettes were introduced as evidence before the grand jury, “in order to lay a foundation such that if testing was done on those items of clothing later on, they could be utilized in further proceedings,” according to a deposition of an assistant district attorney.

After Fappiano’s indictment, Shaler conducted the blood testing. He reported that the saliva on the cigarettes and the semen on the towel were blood type A., which included F.S. and excluded Fappiano, who was blood type O. The jogging pants did not have sufficient material to test based on the technology available at that time.

Prior to the start of Fappiano’s trial in Kings County Supreme Court, Justice Philip Lagana held a hearing to determine whether to allow the introduction of T.S.’s and F.S.’s identifications of Fappiano. Justice Lagana said T.S. could testify about her identification. Her husband could not.

There was no forensic or physical evidence connecting Fappiano to the attack. T.S. testified and identified him as her assailant. Gottlieb’s report had not mentioned the presence of tattoos, and T.S. testified that she had not noticed whether her assailant had any, because he never really took off his pants. She also testified that the white towel, which excluded Fappiano as a contributor to the blood sample, had never been touched by the assailant. The semen sample, she testified, was from a few days earlier, when she and her husband had sex. There was nothing in Gottlieb’s notes indicating the irrelevance of the white towel, but T.S. testified that she and Gottlieb had argued briefly when the detective was collecting evidence, and that she had told Gottlieb that that white towel had nothing to do with the crime.

Two detectives testified that the lack of evidence connecting Fappiano to the crime scene was due to contamination during the investigation. There had been too many officers in and out of the apartment, and some of them had been smoking. It could have been their cigarettes in the ashtray. They said the cigarettes, which had been collected after the apartment had been dusted for fingerprints, contained no dust. That indicated contamination. In addition, T.S. and F.S. both testified that the assailant didn’t actually smoke a whole cigarette, but only took a few puffs from a Newport, which also meant none of the butts were his.

The jury deliberated for two days, then said it was deadlocked, 11-1 for acquittal. Lagana declared a mistrial.

“It is lucky, in my opinion, it is lucky that this case went as long as it did and held the jury out as long as it did with the kind of evidence that was presented here,” he said. “Sure I might agree with you as a lay person that when somebody hears a woman looks at a guy for 40 minutes or 45 minutes out of an hour that would be enough, but how do you explain all this other stuff that happened? How do you explain that they lifted no prints? How do you explain that there was no sperm, no testing, nothing? Nothing put this guy into that apartment.”

Fappiano’s second trial began in August 1985. While most of the testimony was consistent with the first trial, there were some important differences.

First, T.S. denied ever having a conversation with Gottlieb about the white towel. Now, she said she didn’t realize the police had this item until a prosecutor told her.

At the first trial, Fappiano’s attorney had cross-examined Gottlieb about the lineup card with the crossed-out numbers. At the second trial, Gottlieb also testified that she had not tampered with the card, but Fappiano’s attorney was unable to cross-examine Gottlieb as effectively, because the lineup card had gone missing.

The jury deliberated for nearly three days and initially deadlocked. Justice Julius Vinik, who presided over the retrial, then issued a so-called “Allen Charge,” an instruction aimed at encouraging jurors in the minority to listen to those in the majority and avoid a hung jury. The jury convicted Fappiano on August 15, 1985 of five counts of first-degree rape, two counts of first-degree sodomy, one count of first-degree burglary, and one count of first-degree sexual abuse. Fappiano later received a sentence of between 20 years and 10 months and 50 years in prison.

Fappiano appealed his conviction, arguing that the lineups had been “impermissibly suggestive.” The Second Department of the Supreme Court’s Appellate Division rejected his appeal in 1988, noting the length of time that T.S. saw her assailant.

The first exoneration in the United States based on DNA evidence occurred in 1989. That year, Fappiano received a court order to conduct DNA testing on the physical evidence in his case. The police department could not produce the following pieces of evidence: the white towel and the brown towel, the bed sheets, the bra, and the cigarette butts. There was no paperwork indicating the material’s destruction. The district attorney’s office still had the rape kit and the jogging pants.

These items were sent to LifeCodes, a DNA laboratory. When LifeCodes opened the package, the rape kit was empty and the swabs were missing. Analysts at the company tried to test the jogging pants, but they contained an insufficient quantity of genetic material to provide a profile. The items were returned to the district attorney’s office, although LifeCodes kept a DNA extract of the sample from the jogging pants.

As DNA technology improved, Fappiano continued to seek testing, but he was told the evidence in his case was no longer available, even though there were no records that the items had been destroyed.

In 2003, the Innocence Project began representing Fappiano. In 2005, attorneys with the organization located the DNA extract from Fappiano’s case at Orchid Cellmark, which had inherited LifeCodes’s samples after the company went out of business. Analysts with the Office of the Chief Medical Examiner tested the sample obtained from the jogging pants. It contained a male and female contributor of genetic material. T.S. was the female. F.S. and Fappiano were excluded as contributors to the male sample.

On October 6, 2006, the Kings County District Attorney consented to a motion to vacate Fappiano’s conviction. His charges were also dismissed that day, and he was released from prison.

“It is no small miracle that Scott is here today,” said Nina Morrison, Fappiano’s attorney with the Innocence Project. “Had Scott’s case depended on the evidence storage and collection inventory procedures of the New York City Police Department, he would still be in prison today.”

In 2007, Fappiano filed a civil-rights lawsuit in U.S. District Court for the Eastern District of New York against the city of New York and several of the officers involved in his case.

The lawsuit said that the police had created its claim of crime-scene contamination after the forensic evidence had excluded Fappiano and that Gottlieb had suborned perjury by getting T.S. to change her testimony. The lawsuit also said that Sciallo had told prosecutors that T.S. hadn’t picked Fappiano when she looked at photos that second time, and that prosecutors failed to disclose that information to Fappiano’s defense. Judge Sandra Townes would later choose not to rule on whether this was misconduct, because the prosecutor was not a defendant in the lawsuit.

Townes dismissed Fappiano’s lawsuit against the city on January 7, 2015. Separately, Fappiano received $2.5 million in state compensation in 2009 for his wrongful conviction.

Fappiano, a reputed member of the Colombo Crime Family syndicate, was indicted by a federal grand jury in 2011 along with dozens of others on charges of extortion. He pleaded guilty and was released after spending a month in jail. He was also fined $40,000 and ordered to complete 180 hours of community service.

In January 2013, Fappiano was among 32 people indicted by a federal grand jury on charges of extortion and racketeering in what authorities said was an organized crime scheme to take over portions of the New York trash hauling industry.

He pled guilty to a single charge of communicating threats and received a sentence of a year and a day in federal prison. Fappiano died in December 2016 after battling lung cancer.

– Ken Otterbourg

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Posting Date:  Before June 2012
Last Updated: 6/20/2019
State:New York
Most Serious Crime:Sexual Assault
Additional Convictions:Burglary/Unlawful Entry
Reported Crime Date:1983
Sentence:20 5/6 years to 50 years
Age at the date of reported crime:21
Contributing Factors:Mistaken Witness ID, False or Misleading Forensic Evidence, Perjury or False Accusation, Official Misconduct
Did DNA evidence contribute to the exoneration?:Yes