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Judge blames lax attorneys in dismissal of rape charges

Behind-the-scenes legal practice in Niagara County ought to be more formal, County Judge Sara Sheldon Farkas suggested last week as she dismissed half of an indictment against a man who was charged with two rapes.

The ruling means that Nicholas Jenkins Jr., 29, of Ninth Street, Niagara Falls, no longer runs the risk of spending the rest of his life in prison.

He had been charged with predatory sexual assault because he was accused of two separate instances of first-degree rape.

But because of prosecutors' failure to meet a deadline to get ready for trial, Farkas threw out all the charges involving one of the two alleged victims.

Assistant Public Defender Michele G. Bergevin said that ends the threat of the predatory sexual assault charge.

But Assistant District Attorney Robert A. Zucco said he was researching whether there is some way to salvage the predatory count despite having only one victim left.

Jenkins had been indicted on charges of raping women in Niagara Falls on Oct. 4, 2010, and Jan. 6, 2011.

An accusatory instrument for the first incident was filed against Jenkins in Niagara Falls City Court on Nov. 1, 2010.

The filing started a six-month clock in state law for prosecutors to declare their readiness for trial, but Zucco didn't do that until Dec. 1, 2011.

Bergevin, who took over the case after Jenkins was indicted, moved to dismiss the charges involving the first woman because she said the defense hadn't waived time beyond the six months.

Before Jenkins was indicted, his lawyer was James J. Faso Jr. Zucco sent him a letter March 25, 2011, making a plea offer. Faso replied April 5 by agreeing to waive 60 days of the pretrial time limit.

In hearings before Farkas last month, Zucco testified that he would ask Faso about the case whenever they met in hallways or courtrooms on other cases, and Faso urged him not to call a grand jury because the plea offer was still being mulled.

But none of those conversations were put in writing, and Faso testified that he never intended them to serve as waivers of more time.

Farkas said there was no proof of such waivers and dismissed the charges involving the first woman because the six-month limit had expired.

But she said, "This court should not be put in the position of trying to decipher what was meant by certain words or phrases made in passing in the hallway."

Zucco said, "To me, the meanings were clear. The defense attorney asked me not to present the case to the grand jury, and I honored his request."

Farkas remarked that Niagara County Court features a relatively small group of attorneys who handle multiple cases against each other.

"In some cases, as in this case, these relationships and familiarity can lead to a relaxed form of practice," Farkas wrote.

"Here you have an injustice on both ends -- a defendant who sat in jail with no resolution to his case for an extended period of time, and an alleged victim who will not have her day in court to face the defendant," the judge said.

She said it all could have been avoided by putting something on paper, or by action by the prosecutor to move things along.

Zucco said, "There's still one victim who will have her day in court." A trial is scheduled for May 21.