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Erie County judge’s vacating of rape conviction after DNA testing is upheld by appeals court

Michael White spent five years in prison after an Erie County judge convicted him in 2006 of raping a woman in a Gowanda home two years earlier.

But after he was released, improved DNA testing, not available at the time of his trial, showed the semen found in the woman was that of her then-boyfriend, not White.

White’s appeals attorney, who requested the more sophisticated DNA testing, asked the judge to vacate the conviction and order a new trial.

And that’s what Judge Sheila A. DiTullio did last year. Prosecutors appealed her decision, but last month, the Appellate Division State Supreme Court in Rochester upheld her ruling.

Brian Shiffrin, a Rochester attorney who represented White through the post-conviction process, said his client was happy and excited when DiTullio agreed to vacate his conviction and order a new trial.

“It was a long time coming,” the attorney said, adding that White insisted from the beginning that he did not rape the woman.

District Attorney Frank A. Sedita III, noting that the case predated his administration, said he will assign a prosecutor to review the evidence and determine whether to retry the case or dispose of it in some other way.

DiTullio originally found White guilty of first-degree rape and first-degree sexual abuse in the Aug. 30, 2004, attack on the Gowanda woman at the home of a mutual acquaintance.

The judge sentenced the defendant, who was 37 and living in Perrysburg, Cattaraugus County, at the time of his conviction, to five years in prison and five years of post-release supervision.

During the trial, the woman testified that she was asleep when White allegedly attacked her around 5:30 a.m.

The prosecution also presented a lab report showing that when the woman was examined at the hospital shortly after she was allegedly raped, semen was found in her vagina.

“Although it could not be determined at the time whether defendant was the source of the semen, the prosecutor argued during her summation that the presence of semen corroborated the complainant’s testimony that defendant raped her,” the appellate judges noted in their Feb. 6 ruling.

“County Court found defendant guilty as charged, and we affirmed.”

In 2013, while White was out of prison and on post-release supervision, the more sophisticated DNA testing showed that the semen did not come from White but from the woman’s then-boyfriend.

Shiffrin asked DiTullio to vacate the conviction, citing the new DNA evidence.

The prosecution opposed the request, arguing that the DNA evidence, if admitted at a retrial, would probably not lead to a different result.

Prosecutors said the absence of White’s DNA in the woman did not exonerate him because he may have worn a condom or may not have ejaculated when he allegedly raped her.

Last March, DiTullio vacated the conviction and ordered a new trial. “Given the exculpatory nature of the newly discovered evidence, it is the opinion of this court, which sat as the trier of fact, that the cumulative effect of such evidence would probably change the result if a new trial were granted,” she said.

The Appellate Division agreed.

“Under the circumstances, and considering that the case against defendant rested solely on the lab report and the complainant’s testimony, which was sharply challenged at trial, we conclude that the court did not abuse its discretion in determining that the newly discovered DNA evidence will probably change the result if a new trial is granted,” the appellate judges said.

They also noted that the woman “did not testify at trial that defendant wore a condom or failed to ejaculate,” that the woman’s sister and mother testified for the defense and that “there was evidence that defendant was not physically capable of having committed the crime of rape.”