5 Men Fined in Rape Case May Be Retried, Court Rules

Five men who avoided prison time and were fined $750 for having sex with a woman who passed out drunk in a restaurant can be retried, an appeals court has ruled.

In Thursday’s ruling, the appellate division of the state Supreme Court rejected the men’s arguments that a retrial would violate their constitutional guarantee that they can’t be tried twice for the same crime.

The state reopened the case after the men pleaded guilty to a lesser charge and the outraged victim went public.

“It’s a very important decision both for the victim and for our ultimate goal, which is to achieve justice in the case,” said Chris McKenna, spokesman for Atty. Gen. Dennis Vacco.

In 1991, Krista Absalon passed out at a restaurant in Gouverneur, N.Y. She learned a week later that five men dragged her from the bathroom and took turns having sex with her.

The men--Mariano Pistolesi, David Cummings, Michael Curcio, Mark Hartle and Greg Streeter--were charged with rape and faced up to 25 years in prison.

They pleaded guilty to misdemeanor sexual misconduct and a village justice fined them $750 as first-time offenders.

Dist. Atty. Richard Manning defended the plea bargain because Absalon recalled nothing of that evening after passing out and did not receive a medical examination.

The uproar that followed the plea bargain led then-Gov. Mario M. Cuomo to appoint a special prosecutor who eventually sought reinstatement of the rape charges.

He argued in part that the village justice had no authority to accept the plea bargains. A judge agreed, and the appellate division affirmed the judge’s ruling.

Neither lawyers for the five men nor Absalon returned calls seeking comment.