ALBANY — The state’s highest court has upheld the conviction of a Trumansburg woman arrested for DWI in Ovid nearly three years ago.
In a unanimous 7-0 decision issued June 5, the Court of Appeals affirmed Patricia Fratangelo’s conviction. An Ovid Town Court jury found her guilty in August 2012, and Seneca County Judge Dennis Bender upheld the verdict in February 2013.
In October 2011, a state trooper stopped Fratangelo for speeding on Route 89. She was driving from her husband’s skydiving club in Ovid to her Trumansburg home.
Fratangelo was convicted of misdemeanor common law DWI and speeding but acquitted on the charge of DWI per se, or driving with a blood alcohol content of 0.08 of 1 percent or higher.
Ovid Justice Louis VanCleef sentenced Fratangelo to a conditional discharge, $1,000 fine and $400 court surcharge on the DWI count, and a $150 fine and $85 surcharge for the speeding conviction.
Ronald Rogers, the trooper who stopped Fratangelo, testified during the trial he smelled alcohol on her breath and put her through several sobriety tests, some of which she failed. After he took Fratangelo to the state police substation in Romulus, a chemical test showed her blood alcohol content to be 0.09 percent.
Fratangelo testified that after completing a 35-mile bike ride which ended at the skydiving club, she ate some homemade soup and shared a bottle of wine with three people who had been skydiving. She said she had about the equivalent of one glass of wine.
Fratangelo’s attorney, James Baker of Ithaca, brought in a professor of pharmacology at SUNY Upstate Medical University in Syracuse to testify about alcohol absorption and elimination rates during the trial. The professor estimated that when Fratangelo was pulled over her blood alcohol content was 0.03 or 0.04 percent.
Baker and District Attorney Barry Porsch delivered oral arguments to the Court of Appeals in May. Baker argued that VanCleef erred when he refused to instruct the jury that “under the law, evidence that there was less than 0.08 of 1 percent of alcohol in the blood is proof that the defendant was not intoxicated.”
Porsch argued that VanCleef’s jury instruction, based on statutes and case law that have been written and revised over the years by a group of judges and lawyers, was proper. He also said evidence of blood alcohol content is determined by a chemical test, not the opinion of a defense expert.
Porsch said while the Court of Appeals sided with the prosecution, it did add new, minor language to the criminal jury instructions regarding DWI.
“Overall, it was not a landmark case because very few experts are used in DWI cases, and it only involves a minor instruction in the criminal jury instruction,” Porsch said. “The court’s decision will add a couple lines, but they would only be used if an expert testifies.
“I’ve only had one case — this case — in four years where an expert testified in a DWI case. The important aspect of the decision is it shows that the jury’s verdict, as well as the decisions of Judge VanCleef and Judge Bender, were proper.”
Baker did not return a phone call seeking comment.
The original trial was held in the historic “Papa Bear” courthouse in Ovid, the first time a trial had been held there in decades.
“The defendant had rejected an offer to plea to driving while ability impaired and took her chances at trial and on two appeals,” Porsch said. “In my view, justice was finally served in this case.
“Defense attorney James Baker is an excellent trial lawyer and an equally good appellate lawyer who has previously won some landmark cases.”