A lack of physical evidence is a complicating factor in the trial of Michael Orbino Jr.

CANANDAIGUA — Closing arguments, deliberation, deadlock, back to deliberation. That’s how the day went for an Ontario County jury tasked with deciding the fate of Michael Orbino Jr., accused of a rape that dates back to 2008.

After the jury submitted their eighth note to Monroe County Judge Charles Schiano Jr. stating they are deadlocked he issued them an Allen charge, reminding the jurors that the law doesn’t require them to reach a verdict, nor does it require them to violate their conscience and give in to pressure from other jurors. He asked the jury to keep trying.

It was the passionate closing arguments by both defense and prosecution attorneys that launched them into debate.

“The only evidence is just records," said Assistant Ontario County Public Defender Benjamin Gilmour. “It’s a dangerous game being played here.”

Gilmour was referring to the fact that Ontario County District Attorney James Ritts indicted the case after it was closed by his predecessor back in 2014. The victim alleges Orbino raped her in 2008 behind the old Byrne Dairy on South Main Street in Canandaigua.

Complicating the case is a lack of physical evidence. Policy back in 2008 was that if police did not pick up the rape kit from the hospital within 30 days it was destroyed. Current regulations dictate that a rape kit is now kept for 20 years.

“It’s not Michael Orbino’s fault there is no rape kit. He’d love to have that rape kit,” said Gilmour, who pointed out that according to hospital records the victim didn’t have a scratch on her. “There’s no evidence whatsoever that Michael Orbino ever touched her.”

For DA Ritts, his frustration lies with the lack of care and record keeping for the victim, who was a former employee of the hospital that was treating her — Thompson.

“What we saw was an inexplicable unacceptable reaction by Thompson Hospital,” said Ritts. “The victim didn’t matter to Thompson Hospital, she needed to be gone. A value judgement was made by them to push her out the door.”

Ritts pointed out to the jury that according to the medical reports from 2008 the nurse collected a rape kit that took an hour and 16 minutes. According to a medical expert who testified during a trial, a rape kit takes between four and six hours to collect.

The alleged victim testified on that September 2008 evening she had gone on a walk to commit suicide — taking as many pain meds as possible — as a result of vicious migraines, vertigo, and family trouble she could no longer bear. After she took numerous pills she ran into Orbino, who dragged her down an alley and raped her, according to her testimony. She spent two days at the hospital being treated for the suicidal overdose before she alerted hospital personnel that she had been raped.

While in treatment days after the rape, medical records report her saying that a 32-year-old bald-headed man just released from prison raped her.

The case wasn’t brought to police until 2014 when the victim was watching TV and says she recognized Orbino from his mug shot on an unrelated arrest.

The 2014 case was closed after then District Attorney Michael Tantillo decided not to prosecute the case.

Orbino is facing charges of first-degree criminal sex act and first-degree rape. An additional charge of secind-degree kidnapping was tossed.