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Judge tosses rape charges but Gallagher not clear yet

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Queens Supreme Court Justice Sherri Roman dismissed the indictment against the councilman last Thursday following a request by Benjamin Brafman, Gallagher's attorney, who contended that Gallagher was asked biased questions during grand jury proceedings."I'm very pleased with the court's decision today," Gallagher said. "I'm thankful to my friends and family, who have stuck with me during this difficult time."A spokesman for Queens District Attorney Richard Brown said his office planned to impanel another grand jury to hear the Gallagher case.The councilman was arrested in early August after he was accused of sexually assaulting a 52-year-old grandmother on July 8 in his Middle Village district office on Metropolitan Avenue and charged with three counts of rape, a criminal sexual act and assault.Brafman has asked Roman to throw out the case, but in her ruling the judge wrote that "this court finds that testimony and evidence presented to the grand jury was legally sufficient to support each and every one of the counts charged."Nevertheless, Roman decided to grant Brafman's request for the councilman's indictment to be dismissed on the grounds that "the grand jury proceedings were impaired to such an extent that prejudice to the defendant clearly resulted."She said "statements by grand jurors were an attempt to make the defendant look foolish." During the proceedings, Gallagher was asked questions about his marriage, his job as a city councilman, whether he is able to "use his power and prestige to keep things from happening," who pays for his office and whether he has respect for the law, according to court papers.The councilman was also asked who "pays for the carpet [he] had sex on," according to court papers.Brafman said he intended to meet with Brown's office to convince the DA not to proceed with the case. Gallagher is scheduled to return to court on March 20. Prosecutors must decide by that date whether to present evidence in the case to a second grand jury."The matter will be represented to another grand jury before which the defendant can once again, if he be so advised, testify," Brown said.Gallagher, who is married and has children, has insisted that he and his accuser had consensual sex after meeting at Danny Boy's bar in Middle Village, Brafman said. But he could face up to 26 years in prison if he is convicted on rape charges, the DA said.Brafman said he believes Gallagher will not face trial."We are confident that we will be able to convince the district attorney not to present evidence," he said. "I think a dismissal is warranted. We continue to maintain that no rape occurred in this case."Reach reporter Nathan Duke by e-mail at news@timesledger.com or by phone at 718-229-0300, Ext. 156.

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