A key piece of evidence against a New Rochelle cop doesn?t prevail in court as prosecutors admit the cop?s DNA is missing from it.

Sgt. David Rodriguez, 36, is charged with raping a 17-year-old girl. The victim claimed that she was chewing gum when the alleged rape occurred, and that Rodriguez forced his tongue into her mouth. Prosecutors say Rodriguez?s DNA should have been on the chewing gum?but as the assistant district attorney revealed Friday morning, it was not.

Information has also been revealed that the victim has filed a notice of claim against the New Rochelle Police Department indicating that she plans to sue the department and the city. Rodriguez?s attorney, Stephen Worth, says that the lawsuit was what was really behind the accusations against Rodriguez the entire time.

?The victim claims that she was chewing this gum, he forced his tongue down her throat ? and apparently scientifically that?s not what happened,? Worth says, adding that the lawsuit proves that Rodriguez is a target in this case.

Rodriguez has been suspended from his job without pay since the alleged incident, which occurred back in February.

All parties will be back in court July 11.

New Rochelle sergeant gives DNA sample in rape case