Gregory Counts

The Crime

In the early morning of Jan. 18, 1991, a 23-year-old woman flagged down a New York City police officer and reported that three men had kidnapped her and driven her to Central Park, where she was repeatedly raped and sodomized inside the car and in the park. She said the attackers were drug dealers who were trying to find her boyfriend to collect a debt.

The Investigation

The woman subsequently identified 21-year-old VanDyke Perry, 19-year-old Gregory Counts, and a third man as her attackers. Mr. Perry was arrested on Jan. 22, and Mr. Counts was taken into custody on Jan. 26. The third man was never arrested, although police knew his identity. Police did not seize or search the third man’s car or look for fingerprints, semen, hair or other evidence, even though the car was parked in his yard and the woman claimed she was assaulted in that vehicle. 

On the same day, the woman’s boyfriend was arrested for shooting Mr. Perry in the foot a few months earlier. The boyfriend sold drugs with the three men and owed them money. (The charges against the boyfriend for shooting Mr. Perry eventually were dismissed.)

Before trial, DNA tests on semen from the woman’s underwear excluded both Mr. Perry and Mr. Counts. After the prosecution informed the woman of the test results, she then claimed she had unprotected sex with her boyfriend just prior to being abducted and raped — although she had told a doctor at the hospital that they used condoms. As a result, the prosecution argued to the jury that the semen in the woman’s underwear was from her boyfriend.

The Trial

Mr. Perry and Mr. Counts went to trial in March 1992 in New York County Supreme Court. The woman was brought to court on a material witness warrant. She identified Mr. Counts and Mr. Perry as her attackers and testified that she was driven in the third man’s brown car to Central Park, where she was raped and sodomized after she refused to reveal the whereabouts of her boyfriend.

Her account had numerous inconsistencies. She told a doctor at the hospital that she was raped in Morningside Park, but told the police the crime happened in Central Park. She gave varying accounts of how many times each attacker raped her and the manner of the assaults. She said Mr. Counts, who was 6 feet 4 inches tall and weighed 260 pounds, had punched her in the face repeatedly. The physician who examined her, however, had found no injuries or trauma to her face or body.

The defense argued the woman fabricated the assault to protect her boyfriend, and pointed to the DNA exclusion as proof that Mr. Counts and Mr. Perry were innocent. The prosecution argued that the DNA exclusion was meaningless because the DNA belonged to her boyfriend.

On March 16, 1992, Mr. Counts and Mr. Perry were convicted of rape, sodomy, and kidnapping. They were acquitted of criminal possession of a weapon. Mr. Counts was sentenced to 16 to 48 years in prison. Mr. Perry was sentenced to 7 to 14 years in prison.

Their convictions were upheld on appeal. Mr. Perry was released on parole on Nov. 9, 2001. Mr. Counts remained in prison. He refused to participate in a sex offender program or admit his involvement in the crime.

The Exoneration

While in solitary confinement, Mr. Counts found in the prison library a copy of Actual Innocence, a book by Innocence Project co-founders Barry Scheck and Peter Neufeld, and reporter Jim Dwyer. Mr. Counts then asked the Innocence Project to investigate his case.

In 2013, the Innocence Project filed a motion for DNA testing. After the prosecution consented, the tests were performed in 2015. 

A male DNA profile was identified from the samples remaining from pre-trial analysis of the woman’s underwear. Mr. Counts and Mr. Perry were excluded. The profile was submitted to the FBI DNA database and was matched to the DNA of a man who was about 40 years old at the time the woman said she was raped. He had died in 2011.

In August 2016, investigators from the New York County District Attorney’s office tracked down the woman and showed her a photograph of the man whose DNA was on her underwear, wondering if he might have been the third man.

The woman said she did not recognize him. The investigators said that because the man’s DNA was found on her underwear, it either came from the third attacker or a consensual sex partner. She insisted she did not recognize the man.

At that point, she then made a new disclosure. She told the investigators that she had been living on the street at the time. She had a drug habit and engaged in sex work to pay for her drugs. She said that it was possible that the man had paid her for sex. She refused to say more.

In 2017, the New York County District Attorney’s Conviction Integrity Program (CIP) began a joint re-investigation of the case along with the Innocence Project and the Office of the Appellate Defender, which was representing Mr. Perry. On Aug. 14, 2017, Mr. Counts was released on parole.

In February 2018, the third man who had been named by the woman in 1991 was finally located. The man said he never raped anyone. He said that he had a brown car (the car the woman said was used to kidnap her) and it was inoperable at the time. The car was a small two-door vehicle and virtually the entire back seat was occupied by a large stereo speaker.

The man said that he, Mr. Perry, and Mr. Counts previously had beaten up the woman’s boyfriend for failing to pay a drug debt, and that the boyfriend had shot Mr. Perry in the foot after the confrontation.

On April 24, 2018, an assistant district attorney and an investigator met with the woman in her home. She recalled how Mr. Perry and the two others beat up her boyfriend. She claimed they threatened to kill them both.

She said her boyfriend found men who would pay to have sex with her. One night, she said, her boyfriend beat her because she came home without money when a man refused to pay her. She said the boyfriend told her “their problems would go away” if she accused the men who had beaten him of raping her. 

The woman said she only testified because she had been brought to court on a material witness warrant. She admitted her testimony was false and apologized.

On May 7, 2018, New York County District Attorney Cyrus Vance Jr., along with attorneys for the Innocence Project and the Office of the Appellate Defender filed a joint motion to vacate and dismissed the convictions of Mr. Counts and Mr. Perry.