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Alleged rape victim accused of lying Man implicated another to avoid bad-check charge in an earlier matter, deputies say

The man who alleges an Erie County sheriff's deputy raped him while in the deputy's custody has been accused of lying to authorities in another matter.

Deputies say the man implicated a friend in a written statement to evade a bad-check charge.

The 24-year-old told a deputy in June that a friend might have stolen his driver's license and a personal check before cashing the check for $100 at Santino's Pizza Shack in Elma. But the man's story didn't match information found in an investigation, according to court records.

He was served Monday with an order to appear Aug. 2 in Elma Town Court to answer to two misdemeanors: filing a false report and filing a false written statement.

The charges are the 11th and 12th misdemeanors or violations lodged against him this year.

The 24-year-old man accused Deupty George Avery Jr. of rape in January. Avery is to stand trial next week on felony charges linked to that allegation.

The Buffalo News has not identified the 24-year-old man because the court system treats him as the victim of a sex crime.

District Attorney Frank J. Clark said the prosecution of Avery will not change because his accuser might have lied to authorities in another matter.

"I will presume him innocent of these charges the same way I presume Mr. Avery innocent of his because the law says you are innocent until proven guilty," Clark said. "As to issues of credibility, that is solely within the province of the jury or judge."

The alleged attack yielded none of Avery's hair, semen or flakes of skin.

A key witness does not back up the victim's version of events. And medical experts are expected to testify that the key evidence, a tear in the man's rectal lining, can be attributed to his drug use, not a sexual assault.

"At this point, the DA's office really has no evidence, and the only evidence they have is the alleged victim himself," said Deputy Timothy J. Higgins, who was involved in the bad-check investigation. "And the fact he has been arrested three more times since the alleged incident, you have to question his credibility."

In one statement presented to the court, the friend who for a time was suspected of taking and cashing the check for $100 describes Avery's accuser as a man willing to steal to support a worsening drug habit of "pills, weed, coke," he said.

Friend Gerald Biles of Buffalo also told deputies in his statement that he learned his friend, whose father is a doctor, has written prescriptions for himself. He once emerged from an Eckerd Pharmacy "with the biggest bottle of Hydrocodone pills that I ever saw," Biles told deputies, according to court documents.

Deputies passed the information along to the federal Drug Enforcement Administration, Higgins said.

George Blair Jr., the lawyer for Avery's accuser, could not be reached to comment Monday about the bad-check case.

The check was cashed May 18, and after it bounced a couple of weeks later, the Sheriff's Office began to investigate the complaint by pizzeria owner Santino Terio.

When deputies contacted the 24-year-old man, he told them his wallet and checkbook went missing around the middle of May. He never reported the theft to police but suspected a male friend of taking them and signed a written statement, authorities said.

Later, when the checkbook was found at the man's home, the man said just one check was missing. It turned out to be the one cashed at Santino's for $20.15 in food and $80 cash, according to a written report.

Amid the inquiry, the man's father went to Santino's to pay the debt. The man's father paid $145 for the lost money and the bounced-check charge Santino's had to pay, according to records.

During a conversation at Santino's, the father said someone had stolen one of his checks and cashed it for $292 at his bank May 19, Higgins said.

A bank camera showed the person cashing the $292 check was the 24-year-old son, and he had his driver's license at the time, according to deputies and court documents.

The man alleged in January that Avery raped him while processing his arrest for driving while ability impaired at the Sheriff's Office substation in Elma. No DNA belonging to Avery was found on the victim's clothes.

The man made the allegation after he was arrested the next night by the police agency in East Aurora on another charge of driving while ability impaired.

A state trooper who might have held up a part of the man's story -- that Avery told the trooper to go away moments before the attack -- says that never happened.

There was a tear in the man's rectal lining, and prosecutors obtained an indictment charging Avery with two sex-related felonies that could send him to prison for 25 years.

Medical experts are likely to testify that the tear may have been caused by the constipation that occurs with prolonged drug use.

Blood analyses showed that Avery's accuser had several drugs in his system when Avery arrested him Jan. 9 -- the anxiety drug Alprazolam and pain relievers Dihydrocodeine, Hydrocodone and Oxycodone. He also possessed marijuana when East Aurora police stopped him the next night, according to the charges placed in that arrest.

"It never should have gone this far," said Michelle Figel, who is collecting money for the "George Avery Defense Fund" at the gas station and store she owns in North Collins.

"Something just doesn't smell right here," said Figel, a friend of Avery.

e-mail: mspina@buffnews.com

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