Jury finds Cole guilty of felony assault in crash trial

BALLSTON SPA -- A Saratoga County jury on Friday convicted auto repair businessman John W. Cole of felony assault and alcohol-impaired driving for the night he sped and crashed his BMW into a tree on Sitterly Road, leaving a rear seat passenger a quadriplegic.

The panel of seven men and five women deliberated over two days before announcing its verdict at about 2:45 p.m.: Guilty of second-degree assault, a felony, as well as driving while ability impaired and reckless driving.

The jury acquitted Cole,  53, the owner of the Cole's Collision chain, of vehicular assault and driving while intoxicated.

The March 11, 2017 crash left Deanna Shapiro of Cohoes, known as "Dee," a married mother of two children, a quadriplegic.

Judge James A. Murphy III ordered Cole be held in the county jail until his April 27 sentencing. A court officer handcuffed Cole and escorted him from the courtroom.

*****BREAKING NEWS: John W. Cole guilty of assault 2, cleared of vehicular assault and DWI. pic.twitter.com/WQNsKivTkT

— Robert Gavin (@RobertGavinTU) March 16, 2018

"This is a just result," District Attorney Karen Heggen told reporters in a post-verdict news conference, joined by Assistant District Attorney Katherine DeMartino, the lead prosecutor during the trial, and Assistant District Attorney Charles Bucca.  She said Cole "has been held accountable and responsible for the crash that occurred and the assault injuries that occurred to the victim in this case."

Cole faces a determinate sentence of two to seven years on the assault conviction.

"We'll be seeking the maximum period of incarceration. We believe that the facts of this case warrant it," Heggen said.

Before the jury forewoman delivered the verdict, the jurors appeared focused on Cole's consumption of alcohol on the night of March 10, 2017 -- and whether he was legally intoxicated or impaired. In a note they sent the judge Friday morning, jurors wanted to know if they could convict Cole without finding he was intoxicated. The judge, over objections from Cole's attorney, Cheryl Coleman, said they could.

Coleman told reporters she suspected the note was a sign her client would be convicted on the second-degree assault count. She said her client was disappointed but would appeal, saying it was "by far not the end of the legal road."

When a reporter asked Coleman if Cole's acquittal on two counts was a victory or loss, the seasoned defense attorney replied, "Whenever they take your guy out in cuffs, it's not a victory."

Jurors had also asked the judge to re-hear testimony from a state trooper who testified that after the crash, Cole had bloodshot eyes, smelled of alcohol and failed four of the five field sobriety tests administered. The trooper said Cole later acknowledged he drank four to five beers over the course of the night.

When the trooper asked Cole if he would submit to a chemical DWI test, Cole told the trooper, "No sir," and, "Take me to jail. Take away my license," DeMartino said.

Cole's blood was drawn and showed a blood alcohol level of 0.10 percent, two points above the legal threshold for driving while intoxicated. The blood test results were later ruled inadmissible because authorities sent them to a non-authorized judge. In New York, only a county court judge or state Supreme Court justice can order a blood test to be drawn.

As a result, prosecutors did not present the blood test evidence to the grand jury that indicted Cole, let alone at trial. When asked about the error, Heggen declined to get into the specifics.

"We put in the evidence we had that was admissible," the district attorney said.  "The jury did a very hard and difficult job of reviewing all the evidence, the testimony, the physical evidence and they brought back a verdict that says that Mr. Cole is responsible for a violent assault that was a result of his conduct that night."

On March 10, 2017, Cole, his wife, Regina, and Scott and Deanna Shapiro went out to join other couples for a night out at the Rusty Nail bar and restaurant and Trick Shot, where they went to see a band play.

Cole drove with his wife in the front seat of the 2015 twin-turbocharged BMW coupe.

Before leaving Trick Shot, the Shapiros both testified, they asked Cole if he was OK to drive and he said yes, that he had been drinking water for the last hour.

On the way back to Cole's home, where the couples had met up earlier that night, Cole turned onto Sitterly Road and, according to the Shapiros, ignored pleas from them and his wife to slow down. The Shapiros and a State Police investigator testified that Cole floored the gas pedal of his car, hitting 78 mph on a 40 mph road, hit a sign, struck a fire hydrant, smashed into a tree at 50 mph, flipped over and landed upright.

Unbeknownst to the jury were Cole's prior convictions. He served time in state prison after he was convicted in January 1991 of weapon possession, and then in October 1991 of first-degree burglary, second-degree assault and possession of stolen property in Rensselaer County, and promoting prison contraband. Cole was released from prison on March 6, 1995.

During the trial, Cole's attorney relayed to the judge a request from Cole to have video and audio media coverage ceased because Cole feared it could wrongly influence the jury.

Murphy then learned  Cole had enlisted the Albany-based Baker Public Relations firm, headed by former local television reporter Megan Baker, to promote his company's philanthropic efforts with some of the area's best-known charities.

The media blitz showed the leaders of several charities showing their thanks to Cole's company. Included were leaders of the regional branch of the American Red Cross, Ronald McDonald House of Albany, Hannah's Hope Fund, the Boys and Girls Clubs of Southern Rensselaer County, Lifesong Inc., the Make-a-Wish Foundation Northeast New York and Capital District Youth for Christ.

The heads of some of the local charities said they would never have wanted to take part had they known Cole was on trial.

The media included a March 4 Daily Gazette profile that didn't mention Cole's criminal case and a statement he issued through Baker in which he expressed regret for the crash.

The judge -- who called it an "orchestrated, conspiratorial, PR-firm-manipulated, shopped-out method" -- admonished Cole and reminded him of his request to curtail media coverage.

"What I am incensed with is the pious attitude of the defendant with a claim that the press be limited so as not to influence the jury as relates to a woman who comes into this court as a quadriplegic, and then at the same time that he makes those arguments through you," Murphy told Cole's attorney, "he shops out a Cole's Collision rags-to-riches piece that comes out the same day as the day of jury selection. I find that absolutely improper and extraordinary, and I don't believe it's a coincidence."

He ordered Cole to reach out to Baker and cease and desist the efforts.

Before the end of the trial, an additional problem arose unrelated to the facts of the case -- a threat sent to Coleman from a person she said had a close connection to the victims' family.

In court, Murphy said the email was inappropriate, "threatening in nature" and possibly grounds for a criminal charge of aggravated harassment. He left it up to Coleman to decide whether to press charges, noting Coleman and the prosecution for that matter "have jobs to do."

The judge, who preceded Heggen as Saratoga County's district attorney, called the email "abhorrent to this court."