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Tuesday, December 14, 2010

Prosecutor's OK Drunk Driving For Politically Connected Drunks

Plea deal by Niagara DA's nephew is source of questions in DWI case
The Buffalo News by Thomas J. Prohaska and Scott Scanlon - December 13, 2010

District Attorney Violante role denied in expedited leniency

Nineteen months before the Niagara County District Attorney's Office helped the daughter of a North Tonawanda alderwoman get off easy on a drunken-driving charge, the nephew of District Attorney Michael J. Violante plowed his Subaru Impreza into a snowbank in Lewiston. State troopers responded to the crash and charged Timothy L. Violante with driving while intoxicated and operating a motor vehicle with a blood-alcohol level above the legal limit for intoxication. The younger Violante was never convicted of any alcohol-related offense. Instead, less than three weeks after the crash, he was allowed to plead guilty in Lewiston Town Court to driving at a speed not reasonably prudent and disobeying a traffic device. He was fined $200 and got five points on a driver's license that he was never forced to surrender, according to public records. "Is that normal? No," said State Police Sgt. David Martek, the traffic supervisor for Troop A in Western New York and a 22-year police veteran who has handled hundreds of DWI cases. Timothy Violante is the son of Lewiston dentist Mario J. Violante Jr., of Porter, the district attorney's brother. Drivers charged with DWI are not supposed to be allowed to plead to any offense lesser than driving while ability impaired unless the district attorney finds a good reason and places it on the record, according to state law. All the lawyers who were involved in the Timothy Violante case -- defense attorney Robert Viola, Deputy District Attorney Theodore A. Brenner and then-Assistant District Attorney Mark J. Gabriele -- said that Michael Violante played no role in the outcome. "The district attorney recused himself. It was my decision," said Brenner, the staff's DWI specialist. "Right away, Mike said, 'Listen, I've got no role in this. You guys handle it,'" recalled Gabriele, a former part-time prosecutor whose specialty for 20 years was prosecuting drunken drivers in town courts. In a statement, Brenner wrote, "I concluded that anyone else similarly situated, that is, with a clean record, a 0.09 reading, no crash other than sliding on ice into a snowbank, and where there were no witnesses to operation [of the car] would be offered a non-alcohol disposition. I decided not to punish the defendant for being the district attorney's nephew. That decision was mine and mine alone." An investigation by The Buffalo News shows that the district attorney's nephew got a rare break when it comes to DWI cases.
  • The News was able to identify 20 cases in Niagara County since Michael Violante became district attorney in January 2008 in which a DWI arrest resulted in part from a borderline blood-alcohol reading from 0.08 percent, the legal minimum for a DWI charge in New York, to 0.11 percent. Only three of the drivers in those cases were allowed to plead guilty to charges that were not alcohol-related, and two of those drivers had their licenses suspended as part of the cases against them.
  • In Erie County in 2008, the year Timothy Violante was charged, there were 240 DWI arrests involving borderline blood-alcohol level readings. Four of those drivers -- or 1.67 percent -- ended up with convictions that were not alcohol-related.
2nd questionable case

The latest revelations are the second to come to light this year over the way the District Attorney's Office has handled DWI cases for young people with connections to officials in the county. In July, Sara E. Donovan, 23, daughter of North Tonawanda Alderwoman Nancy A. Donovan, was charged with driving while intoxicated after her car struck two parked vehicles on Payne Avenue in North Tonawanda in the early morning hours of July 11. She registered a 0.13 percent blood-alcohol reading and was allowed to plead guilty to speeding and a parking violation. Brenner also handled the Donovan case. He is a holdover from the staff of former Niagara County District Attorney Matthew J. Murphy III, now a county judge, and, like all county prosecutors, serves at Michael Violante's pleasure. Michael Violante, Nancy Donovan and North Tonawanda City Judge William R. Lewis, who approved the Sara Donovan plea deal, are all Republican elected officials. Sara Donovan's defense attorney was former Niagara County Republican Party Chairman Henry F. Wojtaszek, who endorsed Violante to run for district attorney in 2007. Lewiston Town Justice Hugh C. Gee Sr., who presided over Timothy Violante's case, also is a Republican. Gee did not return calls seeking comment on the case. Asked why there was no effort to seek a special prosecutor, with no perceived conflict of interest, to handle his nephew's case, Michael Violante responded, "I didn't think it was necessary." The district attorney declined to comment further. Three messages left with Timothy Violante and his parents went unreturned. State Troopers William L. Persinger and Ryan C. Burns, who have 10 and 13 years' experience, respectively, responded to the crash involving the younger Violante at about 2 a.m. Dec. 20, 2008, on North Ninth Street in the Village of Lewiston, according to a police report obtained by The News through a request to the State Police under the Freedom of Information Law.

Blood-alcohol content

Timothy Violante had crashed his compact car into a snowbank. Persinger, the arresting officer, reported that Violante, then 22 and of Porter, appeared to be impaired by alcohol when they arrived. He wrote in a DWI deposition that Violante "was insistent with me about not having anything to drink." After Timothy Violante "was swaying" during a field sobriety test, missed his nose with his finger four times and aborted an effort to recite the alphabet at the letter "I," he acknowledged that he "had a few drinks and that he is probably over the legal limit," Persinger wrote. He was taken to the State Police barracks in the Town of Niagara and registered a blood-alcohol reading of 0.09 percent. He was charged with driving while intoxicated, driving with a blood-alcohol content above 0.08 percent and driving at a speed too fast for road conditions, Persinger reported. Lawyers involved with the case said Timothy Violante was treated the way he was because of his blood-alcohol reading. "My client had consumed beers just before his operation of the vehicle and within less than five minutes of his stop," Viola wrote to the District Attorney's Office. "I would contend that since it normally requires in excess of 20 minutes from ingestion for alcohol to be diffused through the stomach, that the [blood-alcohol content] was below 0.08 percent at the time of operation."

Both requests granted

In a letter from Viola to Gabriele that was forwarded to Brenner, the defense attorney asked for a nonalcohol plea and a fast resolution to the case. He got both. The plea was entered at Violante's first Lewiston Town Court appearance Jan. 6, 2009, 17 days after the arrest. Viola said Timothy Violante, then a senior at St. Vincent's College in Latrobe, Pa., needed to be able to keep driving and avoid a license suspension that would have occurred at his first court appearance with an attorney. Alcohol breath tests can be off by 0.01 percent, said James J. Faso, a Niagara Falls defense attorney who said he has tried hundreds of DWI cases. "When you can't get a plea, you try the case and let the judge decide. There are judges who will give you an impaired at a 0.14," Faso said. Faso said he could not recall ever winning a nonalcohol-related plea deal on a DWI charge. He did say he has been able to get judges to dismiss such cases, however. The News asked Brenner and Michael Violante to provide other examples of drivers who have been given nonalcohol-related pleas during the last three years, but the request went unanswered. Public records available indicate that Timothy Violante's plea deal on his DWI charge was anything but common. A database involving all borderline drunken-driving cases in Niagara County does not exist, according to the State Police and the county's STOP-DWI Office. But by using its archives and other public records, The News was able to identify 20 cases in the county since Violante became district attorney in which a DWI arrest resulted in charges that a motorist had a borderline blood-alcohol reading from 0.08 percent to 0.11 percent.

Case quickly resolved

Defendants in 14 of those cases ended up with convictions to alcohol-related offenses: 12 for driving while ability-impaired by alcohol and two for DWI. Three of the cases involve drivers charged with DWI this year who have had their driver's licenses suspended while they await the outcome of their cases. Two of the three drivers who were allowed to plead to nonalcohol-related offenses had their licenses suspended -- one for three months, the other for six -- while they awaited the outcome of their cases. The average time to resolve the 17 cases no longer pending was 77 days. Four of the cases were resolved more quickly than the one against Timothy Violante, two with convictions for DWAI and one for DWI. For several years, The News has kept closer track of DWI cases in Erie County. At least 3,264 drivers were charged with misdemeanor DWI in Erie County in 2008. Twenty-three motorists -- seven-tenths of 1 percent -- ended up with convictions that were not alcohol-related. The average case took 143 days to resolve in court. State Police Capt. Craig S. Hanesworth, zone commander for Niagara County, said that it's not unusual for defense lawyers to attack the reliability of equipment that takes blood-alcohol readings in DWI cases but that the tactic is rarely successful. Hanesworth said lawyers have the added burden of disputing officers who are trained to look for signs of intoxication at an arrest scene. "When we make DWI arrests," he said, "[we look at] multiple things." It's up to officers to provide the best evidence they can to back up an arrest, he said. As for plea bargains? "The reasoning for that," he said, "is a question for the district attorney's office." News Staff Reporters Patrick Lakamp and Nancy A. Fischer contributed to this report. and


bail bonds las vegas said...

Sometimes it's all about who you know. I think that's pretty obvious even to a 1st grader.

Anonymous said...

I would be very surprised if a FOIL request or review of the court's files actually supported the District Attorney's claim that this was a common offer in such cases. I am an attorney in downstate New York and my practice focuses on DWI defense. A non-alcohol plea bargain is UNHEARD of. Especially when an accident is involved. Furthermore, the Trooper swore in his statement that the defendant was exiting the driver's side as the Trooper arrived. That combined with the defendant's admission to operating the vehicle is more than sufficient to prove that the defendant was operating the vehicle.

Furthermore, in New York, the law prohibits those charged with DWI to plead guilty to a non-alcohol related charge unless the DA determines that a non-alcohol plea is warranted. But even where the DA determines that an alcohol related conviction is not warranted, the court must still consent and "the court shall set forth upon the record the basis for such disposition." VTL 1192(10)(a)(i). I would be very curious to see if the judge performed his or her obligation to explain on the record why this defendant, who was involved in an accident with a .09 was allowed to plead guilty to a 2 point traffic violation. I would also love to see how many other defendants this consented to such a plea deal. John Campbell, Esq.