Capozzi officially cleared of rape charges

It took only a few minutes in court Monday, but when it was done, Anthony J. Capozzi was clear of rape and sodomy charges for the first time since he was arrested Sept. 13, 1985, on charges that he was the Delaware Park Rapist.

Erie County Judge Shirley Troutman signed orders setting aside Capozzi’s convictions and dismissed the charges in the interest of justice, based on DNA tests from recently discovered rape kit slides stored in Erie County Medical Center.

Those DNA tests showed that authorities were 100 percent certain that Capozzi did not commit the rapes. The same tests showed with almost absolute certainty that the DNA belonged to Altemio C. Sanchez, the man charged as the Bike Path Killer.

Neither Capozzi, 50, nor any member of his family was present for the ultimate verdict in Troutman’s court, but spectators erupted in a brief round of applause that Capozzi’s nearly 22 years of wrongful custody was finally coming to an end.

Attorney Thomas C. D’Agostino, who never doubted Capozzi’s innocence over the past two decades, said both he and the Capozzi family were ecstatic that Capozzi will be home by week’s end.

Before his conviction, Capozzi suffered from schizophrenia that apparently worsened in prison, and he is currently a patient of the state Office of Mental Health.

Troutman’s order to release Capozzi will be served immediately on that agency and the state Department of Corrections.

The judge said it was essential that the criminal justice system act as promptly as possible to free Capozzi from custody now that the newly discovered evidence showed he was innocent.

“As far as I’m concerned,” D’Agostino said in reaction to Troutman’s order, “I have a big load off of my shoulders.”

Asked what he will do when he first sees his client as a free man, D’Agostino beamed: “I’ll probably give him a big hug.”

D’Agostino’s motions to erase Capozzi’s conviction and free him from prison were supported by Assistant District Attorney Frank A. Sedita III.

Sedita outlined Capozzi’s recent path to freedom in a time line he submitted to the court, starting with the March 1 discovery that specimens from past sexual assault victims were found to be stored in a file drawer in ECMC.

After a subpoena and search warrant were issued for the slides prepared from the Delaware Park rape victims, tests by a forensic serologist showed that the sperm on those slides all but matched that of Sanchez.

The DNA tests showed that with one of the rape victims, the probability that it was a random individual, not Sanchez, were 1 in 254 billion. For the other victim, it was an even slimmer probability, 1 in 1.78 quadrillion.

Although the statute of limitations has expired to charge Sanchez with those crimes, Sedita said prosecutors might be able to use the evidence against him at trial. Sanchez is charged with murdering three women, Linda Yalem, Majane Mazur and Joan Diver.

The test results showed absolutely that the semen was not from Capozzi, authorities said.

To be certain that the correct slides were tested, investigators from the district attorney’s office last week contacted the two Delaware Park rape victims, Sedita said. Mouth swabs for DNA samples were obtained, and those samples matched the ECMC slides.

Dennis Delano, a Buffalo detective assigned to the Bike Path task force who recently looked into the Delaware Park rapes, was so convinced of Capozzi’s innocence that he was prepared to testify for him at a parole hearing this week.

“I feel good, real good,” Delano said as he emerged from the courtroom. “I’m just happy for the Capozzi family.”

That parole hearing, scheduled for today, is a moot issue now that Capozzi’s convictions have been erased.

Norman P. Effman, an attorney considered an expert in parole hearings who was working on Capozzi’s most recent parole attempt, said Capozzi was also a victim of a blanket executive order on sexual offenses from former Gov. George E. Pataki.

Capozzi, despite a clean disciplinary record in prison, had been turned down for parole in five previous hearings because he refused to admit that he committed the rapes, or show remorse for his actions.

Effman said Pataki’s order mandated that all those convicted of sexual offenses had to attend remedial classes in prison. Capozzi was dismissed from each class, he said, because to complete it, he had to admit his guilt and express his remorse.

Without completing the course, Effman said, Capozzi could not be granted any time off his sentence. So he faced the possibility of serving his full 35-year sentence, Effman said.

D’Agostino said long hours of talking to Capozzi had convinced him that he had nothing to do with the Delaware Park rapes.

“He was so emphatic,” D’Agostino said. “It was not just that he was not guilty. It was more that ‘I didn’t do those things to those women.’ ”

The defense lawyer, assisted at the trial by attorney Robert J. Schreck who also attended Monday’s hearing, said there were a number of other things that pointed to his client’s innocence.

The rape victims described a man who weighed 160 pounds; Capozzi weighed between 200 and 220 pounds. The victims never mentioned a prominent 3-inch scar on Capozzi’s face. They said the rapist wore shorts, and Capozzi’s father testified that his son, embarrassed by his leg hair, never wore shorts.

Delano also found recently that the rapist’s method of operation matched those alleged to be used by Sanchez. And he doubted that Capozzi possessed the mental capability to give the detailed instructions that the Delaware Park rapist gave his victims.

But Capozzi, who bore a strong resemblance at the time to Sanchez, was identified by three women in court as their attacker, and although he was acquitted of one rape, a jury found him guilty of the other two.