Nache Afrika on Wednesday was granted a new trial for a violent sexual assault on a young female Cheektowaga store clerk six years ago.
In a unanimous ruling, the five-judge Appellate Division of State Supreme Court agreed with Buffalo Legal Aid attorney Vincent F. Gugino that Erie County Judge Michael F. Pietruszka should have suppressed blood-test evidence authorized by another judge before Afrika's trial here three years ago.
Afrika, of Rochester, has been in Attica Correctional Facility for the past five years for both the Cheektowaga attack and unrelated shootings and sexual attacks in Rochester. Afrika, now 42, vowed at his Dec. 20, 2001, sentencing that he would get a new trial.
Formerly known as Harry Bacon, Afrika also complained to Pietruszka three years ago about prosecutors he accused of having "tried this case in the media."
John J. DeFranks, first deputy district attorney, said his office is petitioning the Rochester appellate court to reconsider the case and order a further hearing.
DeFranks said law enforcement officials "remain convinced that the judgment (of the Buffalo jury) is supported by sufficient admissible evidence" to sustain the conviction.
Regardless of the outcome of the Cheektowaga case, Afrika will remain behind bars until at least December 2032 because of his conviction for two Rochester crimes committed earlier in 1998.
The appellate court agreed with Gugino's contention that Pietruszka erred in refusing to suppress the use of an incriminating blood test that linked Afrika to both a Rochester sodomy and the Cheektowaga rape.
The Rochester tribunal held that State Supreme Court Justice Kenneth R. Fisher of Rochester correctly suppressed the blood sample in the sodomy case two years ago.
The appellate court agreed with Gugino's contention that there was insufficient direct -- rather than hearsay -- "probable cause" evidence tying Monroe County serological evidence from the sodomy attack to the Cheektowaga rape.
In July 2002, Fisher imposed a 25-year prison term on Afrika on his June 2002 Rochester jury conviction for the June 25, 1998, robbery and sexual assault of a male Rochester store clerk, about four months before the Cheektowaga assault.
Afrika, who served as his own lawyer during the Buffalo trial with assistance from his court-assigned lawyer Susan M. Karalus, has been in Attica since January 1999 because of the earlier 25-year prison term he received for a Rochester shooting early in 1998.
On Dec. 20, 2001, Pietruszka added 75 years to Afrika's prison term for the sexual assault on a young female clerk and the robbery of an elderly woman clerk during a gunpoint attack at the Marshalls Department Store on Union Road in Cheektowaga late on Oct. 27, 1998.
Afrika's criminal history includes a 1982 rape conviction, for which he spent eight years in prison.
Court officials noted Afrika was convicted of the Cheektowaga crime through both DNA evidence and testimony by the older victim that Afrika's voice in the Buffalo courtroom sounded like the masked attacker's.