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Testimony Leads To Mistrial For Man Accused Of Sexual Assault

Mistrial was declared in the pending prosecution of Dennis L. Park. He is accused of raping two women in July 2018. Both women took the stand before a mistrial was granted to the defense. Pictured is Park in the third day of trial. P-J photo by Jordan W. Patterson

MAYVILLE — After four days of testimony and a week of jury selection, a mistrial was declared in the sexual assault case of Conewango resident Dennis L. Park.

Chautauqua County Court Judge David Foley made the ruling following an extended recess Friday.

Park, 34, is facing charges of first-degree rape and two counts of first-degree criminal sex act for incidents against two different women. One assault took place July 11, 2018, near Chandler Street in Jamestown. Another, a week later on July 17, 2018, took place inside a city laundromat bathroom.

The request for a mistrial was made by the Chautauqua County Public Defender Ned Barone, who is representing Park.

“Whenever you move for a mistrial, generally speaking, you believe some form of prejudice has been created, some form of prejudice has been established against your client that can’t be cured by a more reasonable type of fix for the problem, so to say,” Barone told The Post-Journal afterward. “Obviously, the court agreed with us and granted our mistrial motion. At this point, we believe that was the proper decision. However, after spending two weeks in trial, that’s difficult.”

The ruling came after Michael Flaherty of the Chautauqua County District Attorney’s office called a DNA forensic analyst from the New York State Police.

The analyst, in her testimony, mentioned the findings of another analyst, a serologist. Discussing the rape kit from the July 17 alleged victim, the analyst noted in court that the serologist had found sperm from an oral DNA swab.

Foley offered, following another break, a solution to cure the potential prejudice. He said an instruction could be given to the jury and the serologist could be called to testify of her findings. However, the serologist, following an inquiry by the prosecution, was unable to travel at this time.

Next, it was proposed that a new serologist with the state police conduct the tests on the DNA samples and then testify next week.

Foley and Barone remained concerned about leaving the jury sitting for too long if the examination of DNA went into next week or the week following.

Later, Foley said that because the analyst’s testimony referenced another person’s findings, he ruled it as hearsay.

At the time the hearsay comments were made, Flaherty continued his line of questioning of the witness before Barone objected in a sidebar conference with the judge. The jury members were sent back to their chambers and the witness was asked to the leave the courtroom.

Because the serologist was not in the courtroom, and the testimony came from another person, Barone was not allowed to perform a cross examination on the potential witness. Citing the Crawford v. Washington case that established the modern confrontation clause, Foley ruled that the testimony was in violation of Park’s rights to face his accuser — in this instance being the serologist.

Foley expressed concerns of the potential prejudice that was made on the jury of Park having heard the analyst’s comments.

“I cannot undo that,” he said of the witness’ statement.

Foley asked for a recess, after which he returned and said he had no choice but to grant the mistrial.

“It’s the difference between this jury finding Park guilty or not finding him guilty,” Foley said in court.

District Attorney Patrick Swanson commented following Foley’s ruling.

“Given that this still a pending matter I am not at liberty to make comment on this case and we’ll continue to move forward towards disposition,” Swanson told The Post-Journal.

Barone had requested at least three mistrials after jury selection has been completed. The first two requests were in regards to media coverage the case had received.

The trial, which began Tuesday, saw both alleged victims, numerous JPD officers, a nurse and a forensic analyst take the stand to testify. No defense witnesses were called as Flaherty did not have the chance to rest his case before Friday’s mistrial.

Both women became emotional on the stand while describing their assaults. One alleged that Park “rushed” her in the laundromat and forced her at knifepoint to perform oral sex. The other victim claimed Park forced her to provide sexual acts behind a factory near Chandler Street, in exchange for her safety. In both cases, the women said Park used a knife to threaten them.

No date for a potential retrial has been announced. Barone alluded to a possible pre-trial conference as the next step, but was unable to speculate when that would take place.

Park will remain in Chautauqua County Jail.

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