SARATOGA SPRINGS -- A convicted rapist is again on trial, this time for allegedly failing to register as a sex offender while working at the Saratoga Race Course last summer -- around the time of the rape.
The felony failure to register charge against Wilfredo F. Diaz, 44, arose from an investigation into the rape of a woman alongside Nelson Avenue in the early morning hours of Aug. 16. Diaz was arrested after a passer-by saw the assault taking place just north of the entrance to the Saratoga Casino Hotel and called police.
Diaz was convicted of the rape in February.
“Prior to [the first] trial beginning, the court had severed the indictment, which means it removed the failure to register charge and indicated that the defendant should be charged and tried separately for it,” said Saratoga County Assistant District Attorney Michele Schettino, the prosecutor in the rape trial. She said the move "is common and within the right of the court to do so in order to protect the rights of the defendant."
Diaz was due to be sentenced Thursday for the rape conviction -- two counts of predatory sexual assault and other charges -- which could yield a maximum of 25 years in state prison and possible consecutive terms. The sentencing by County Judge James Murphy III was adjourned, however, due to the ongoing trial -- which started Monday -- over Diaz’s alleged failure to register, Schettino said.
“It’s kind of hard to have a sentencing in the middle of a trial,” she said. “And we only have one judge, and it’s all the same parties and players who were part of that first trial.”
More than 20 witnesses provided testimony during the rape trial, including a good Samaritan who reported the crime and helped the victim. Police determined Diaz and the woman were acquaintances; they were together in Diaz’s truck before the attack.
Diaz was listed on the state sex offender registry as a Level 2 offender for his earlier conviction for raping a 13-year-old girl in Washington County in 2001, records show. That required him to report employment information to the state Division of Criminal Justice Services, which he is accused of failing to do when he worked at the track last summer, Schettino said.
Assistant District Attorney Victoria Graf is the prosecutor in the second trial, while Diaz is being represented by Assistant Public Defender Joseph Hammer. A new date for Diaz’s sentencing on the rape charges had not been determined, as of Thursday.