Melissa Aguanno, an attorney, leaves East Hampton Justice Court on March 22 after a jury voted her client “not guilty” of the two charges she faced, driving while intoxicated, and driving with ability impaired by alcohol.
- T.E. McMorrow

Cases That Made Defendants Happy

Lack of video was key in East Hampton D.W.I. trial’s not-guilty verdict By T.E. McMorrow | April 4, 2013 - 12:03pm

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East Hampton Town Justice Court has seen two alcohol-related cases in recent weeks that challenged police and the law, and made defendants very happy.

In one case, a Springs woman, Yohanna Guarin, was found not guilty of driving while intoxicated at the end of a two-day jury trial, during which her attorney criticized the East Hampton Town Police Department for having erased its videotape of her processing at headquarters.

Ms. Guarin had refused to submit to a breath test at the station house following her arrest last September. She testified that she had had only two glasses of wine when she was pulled over, and that she was not drunk. She refused the breath test, she told the jury, because she was frightened.

Her attorney, Melissa Aguanno, argued that by erasing the tape the police had destroyed evidence that could be exculpatory for her client. She made the argument not before the jury but in an extended debate in Justice Lisa R. Rana’s chambers shortly before the trial ended, and the justice agreed.

The four-man, two-woman jury took less than 10 minutes to come to a unanimous verdict on March 22.

Ms. Aguanno said last week that videotaping breath tests was “a good thing. . . . We all want the truth.” But, she said, “The Police Department is an arm of the district attorney. The district attorney is responsible to preserve evidence. Even if they are technically unaware of it, they are supposed to protect any and all recordings.”

According to Capt. Michael Sarlo, the department keeps videotapes for about 60 days and then loops over the recordings.

Ms. Aguanno said after the trial that she decided on her line of defense after questioning the arresting officer, Vincent Rantinella, during a Department of Motor Vehicles hearing in Hauppauge involving Ms. Guarin’s driver’s license.

“I got to cross-examine him there, and I felt that his story then had a lot of holes,” she said. “I didn’t want to give him a chance to go through hearings, with the prosecutor preparing him, and then getting a second and a third bite at the apple. So I decided to waive the hearings and motions and just go straight to trial.”

After the verdict was handed down, one juror spoke to the press on condition of anonymity. The jury had found both Officer Rantinella’s testimony and Ms. Guarin’s credible, the juror said, leaving it with a reasonable doubt as to her guilt.

“The tape issue was huge,” she said. “Why wasn’t there a tape? If you videotape a sobriety test then we would have known exactly what happened.”

Captain Sarlo called Officer Rantinella a “top officer,” saying that he has been “at the top of our department for four or five years.” The department considers the officer, who has been with the four or five years.” The department considers the officer, who has been with the force for nine years, an expert in D.W.I. procedure, said the captain, adding that he regretted the jury’s decision, but that each trial was a learning experience.

Last Thursday, the New York State Court of Appeals ruled on another case involving the erasure of tapes. An article that appeared the following day in The New York Law Journal reported that “the state’s high court yesterday told judges to give juries an adverse inference charge whenever the police or the prosecution lose or destroy evidence that is ‘reasonably likely’ to be of material importance to the defense in a criminal case.”

The case in point involved the erasure of a tape made in jail.

The second D.W.I. case in East Hampton Town Justice Court recently also came before Justice Rana. This time the defendant was Enver Islami of East Hampton, who had twice pleaded guilty, in 1989 and 1990, to drunken driving.

He had no encounters with the law since then, until last Sept. 27, when he was again charged. His attorney, Tina Piette, asked the court to vacate the 1990 guilty plea on the grounds that Mr. Islami could not have known at that time that 23 years later, on Sept. 25, 2012, the Department of Motor Vehicles would institute a new regulation imposing a five-year driver’s license suspension for three D.W.I. convictions in a 25-year period.

Ms. Piette argued that the new regulation was at odds with existing state law, which goes back 10 years, not 25.

It is a position endorsed by Peter Gerstenzang, an expert in the field of D.W.I. law and the chairman of the New York State Bar Association’s annual symposium on the subject, May 9 in Manhattan.

“Not only has the D.M.V. changed our law, the have overruled and contradicted New York State law,” he said recently.

Justice Rana granted Ms. Piette’s motion on Feb. 21, accepting, in place of Mr. Islami’s 1990 guilty plea to D.W.I., a guilty plea for speeding. Noting that both his drunken-driving convictions were over 20 years old and that he had otherwise steered clear of the law, she said she felt it was “fair and just” to vacate the 23-year-old conviction.

She made it clear, however, that she was unlikely to take the same action again except in an unusual case, even as she was aware of the draconian effect of the new regulations.

“The judges are being placed in a terrible position, because they are being confronted with what is, basically, a vigilante reaction to a terrible situation,” Mr. Gerstenzang said.

In response to several phone calls and e-mails asking for Suffolk District Attorney Thomas Spota’s reaction to the vacated sentence, Robert Clifford, his spokesman, responded by e-mail that “defense counsel . . . made application to vacate a 23-year-old prior conviction of Driving While Intoxicated based upon ineffective assistance of former defense counsel. This application was granted, the defendant’s conviction was vacated, and he entered a plea of guilty to a traffic violation.”

Ms. Piette said that her motion did not reflect upon the quality of Mr. Islami’s previous representation.

Police Close a Loophole

By T.E. McMorrow | May 16, 2013 - 12:37pm

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The East Hampton Town Police Department and the County District Attorney’s Office have closed a loophole in arrest procedures following a not-guilty verdict handed down in March by a local jury.

It emerged during the course of the trial, in East Hampton Justice Court, that following arrests, town police routinely video people as they go through processing at headquarters, but dispose of the videos after 15 days unless specifically requested to keep them. The procedure became an issue after a woman charged with driving while intoxicated refused to take a breath test at the station house, and told the jury she had done so because she was “frightened.”

Justice Lisa Rana instructed the jury that the failure of the police to produce the video, which might have proved the defendant’s assertion, should be taken into account during their deliberations. The defense attorney, Melissa Aguanno, drove the point home in her closing argument, and several jurors said afterward that the lack of a tape was a factor in their verdict.

That will not happen any more. Captain Michael Sarlo, the department’s spokesman, said this week that the taping system, which dates from the opening of the Wainscott headquarters building in 2003, has been modernized. “A protocol has been put in place,” he said, to preserve and capture all videos made.

In other town police news, Lt. Christopher Hatch, commanding officer of the Montauk precinct, is in Quantico, Va., for 12 weeks, but he is not on vacation. Lt. Thomas Grenci, who is filling in for him in his absence, said Lieutenant Hatch is at F.B.I. headquarters for a 12-week intensive program covering communication and leadership, computer crime analysis, and forensic science. He will return to East Hampton early next month.