Mark Denny

The Crime

At about 2 a.m. on Dec. 20, 1987, two masked men approached a Burger King restaurant in Brooklyn as employees were locking up. The employees were forced to open up. Inside, the robbers forced a male employee to disrobe and locked him in a storeroom. The two men then forced an 18-year-old female employee to undress and raped her in a back room. The male employee was then forced to sexually assault his co-worker.

At some point, a third man entered the restaurant. The men fled with $3,000 in cash.

The Investigation

About three weeks later, on Jan. 8, 1988, police stopped a car containing four people, including 16-year-old Mark Denny. The driver of the car was Raphael James, Mr. Denny’s cousin. Mr. James and the two other occupants, Eddie Viera and Mark Smith, were suspects in an earlier Burger King robbery in Manhattan. Because Mr. Denny was in the car, he became a suspect as well. A gun was found under the driver’s seat. 

In March 1988, Mr. Denny, who had no prior convictions, as well as Mr. James, Mr. Viera, and Mr. Smith were charged with the Brooklyn Burger King robbery. The 18-year-old female employee identified them, even though she was blindfolded during part of the attack and had consistently said only three men were involved. After the police identified Mr. Denny as a suspect, her account changed to allow for the possibility of four attackers. 

A detective asked the woman to view a photographic lineup, explaining that they had one of the attackers and that his name was Mark Denny. Nevertheless, after viewing the photographs, she did not identify Mr. Denny. Two days later, however, the woman viewed a live lineup and, at that point, she identified Mr. Denny as one of her attackers. Mr. Denny was the only person who appeared in both the photo and live lineups, a practice known to lead to mistaken identifications.

The male employee viewed Mr. Denny in a live lineup, and made no identification. 

Mr. Denny and the others were each charged with first-degree rape, first-degree sodomy, first-degree coercion, and robbery.

The Trial

Mr. Smith and Mr. Viera pleaded guilty and were sentenced to prison. 

On Feb. 1, 1989, Mr. James and Mr. Denny went to trial in Kings County Supreme Court. The male employee did not identify Mr. Denny and continued to maintain that only three men were involved. The female employee identified Mr. Denny, however.

Under questioning by the prosecutor, a detective testified that Mr. Denny and Mr. James previously had been arrested on an unspecified charge in Manhattan.

A detective also testified that when Mr. James was arrested, he said, “I did the robbery, but Eddie and Mark raped her,” he said. When asked who was present, Mr. James said, “Eddie Viera, Mark Smith, and my cousin, Mark.”

Mr. Denny’s grandmother testified for the defense that he was at her home in Queens at the time of the crime. On Feb. 2, 1989, after a two-day trial, Mr. Denny and Mr. James were convicted of all charges. Mr. Denny was sentenced to 19 to 57 years in prison.

Six days after he was convicted, on Feb. 8, 1989, Mr. Denny pleaded guilty to possession of the gun found in the car in January 1988, although he insisted that he did not know the gun was in the car. He was sentenced to one year in prison to be served concurrently.

In 1991, the Appellate Division of the New York Supreme Court affirmed Mr. Denny’s conviction. 

In 1997, Mr. Denny filed a federal petition for a writ of habeas corpus seeking a new trial based in part on a statement from Mr. James that Mr. Denny was not involved in the crime. Mr. James wrote a letter saying he committed the crime with only Mr. Viera and Mr. Smith. He said in the letter, “My conscience has been haunting me for years.”

The petition was denied.

Mr. Viera, Mr. James, and Mr. Smith eventually were released on parole. Mr. Denny was denied parole because he refused to admit that he was involved in the crime.

The Exoneration

In 2009, the Innocence Project began investigating Mr. Denny’s case. After a search for physical evidence was unsuccessful, Innocence Project Lawyer Nina Morrison submitted a lengthy presentation to the Kings County Conviction Review Unit (CRU) requesting an investigation.

During that investigation, the CRU consulted with an expert in eyewitness identification. The expert concluded that the woman’s identification of Mr. Denny was problematic because she was blindfolded for part of the crime and because of the trauma of the attack. The passage of three months from the time of the attack until she viewed the lineup was also a factor that might have contributed to a misidentification, the expert said. In addition, the expert concluded that the police detective’s showing the woman Mr. Denny’s photo and then showing her a lineup which included Mr. Denny was highly suggestive and contaminated the woman’s memory.

By that time, Mr. Viera and Mr. Smith also said Mr. Denny was not involved in the crime.

On Dec. 11, 2017, Mr. Denny’s conviction was vacated. On December 20, Kings County District Attorney Eric Gonzalez dismissed the charges and Mr. Denny was freed. Mr. Denny’s gun possession conviction also was vacated, and the case was dismissed with the consent of prosecutors, as was a conviction for possession of contraband that occurred while he was in prison. 

In 2020, Mr. Denny settled a claim against the city of New York for $9.75 million. In 2021, Mr. Denny settled a claim for compensation in the New York Court of Claims for $4.75 million.