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Fa la la Fossella sent to prison - Disgraced pol appeals sentence; hopes for ‘clean slate’ on appeal

There are clearly better places to spend Christmas Eve than in the clink.

Faced with the requirement of reporting on December 19 to the Alexandria, Virginia, Detention Center to serve a five-day jail sentence arising out of his drunk-driving conviction, Rep. Vito Fossella did what he was fully expected to do — he filed an appeal.

The disgraced pol — who is retiring at the end of the year -- returned to an Alexandria courtroom on December 8 to learn his sentence, approximately two months after being convicted of driving under the influence, a misdemeanor.

Fossella’s sentence — which also includes a $300 fine -- was imposed by Alexandria General District Court Judge Becky Moore, who also suspended Fossella’s driver’s license within Virginia for one year, and ordered the retiring congressman to complete an alcohol safety program.

The entire sentence has been stayed pending the results of the appeal, which will be heard at the circuit court level.

Barry Pollack, the attorney representing the congressman, told this paper that, “The sentence that the judge announced yesterday is no longer in effect because we filed an appeal.”

In Virginia, he explained, appealing the results of the district court proceeding “nullifies” the results of that proceeding. At district court, he added, “We start with a clean slate.”

Choosing to appeal at the circuit court level, Pollack added, is “a common progression for anyone in the congressman’s situation.”

No date has yet been set for the appeal. However, Pollack said that his guess is that it is “about three months down the road.”

Pollack acknowledged that Fossella was “disappointed with the outcome” represented by the sentence handed down by Moore.

“He has, since the day of his arrest, conceded very candidly that he had something to drink that evening, that he made a mistake and that he shouldn’t have been driving,” Pollack noted.

“That said,” Pollack went on, “he wasn’t anywhere near the level of intoxication that the Commonwealth has asserted. They claim he was above 0.15 on one Breathalizer test result. We believe we put on clear evidence that the machine malfunctioned at the time of the test.

“The test results were clearly inconsistent with all the eyewitness testimony,” Pollack added. “The judge obviously put a lot of weight on the test result. We are confident, at the next level, when all the evidence is heard, the result will be different.”

The week is likely to end on a more pleasant note than it started for Fossella. On December 14, Fossella — who currently represents the 13th C.D., which includes all of Staten Island and a swath of Brooklyn from Bay Ridge to Gravesend — will host a thank-you brunch for 500 supporters on Staten Island.

That event has insiders speculating whether Fossella is mulling over the possibility of running again for the seat that he chose to give up in the wake of the scandal that has dogged him ever since he was pulled over in Virginia on May 1 after running a red light and was taken into custody, after failing a sobriety test.

At Fossella’s October trial, Alexandria police said that Fossella’s blood alcohol level was 0.17 percent, well above the legal limit of 0.08 percent. Virginia law requires that anyone convicted of drunk driving whose blood alcohol level exceeds 0.15 percent serve a five-day mandatory jail sentence.

During the brief trial, Fossella himself testified, and said that he had had no more than two or three glasses of wine over the course of the evening. He also said that he had been hurrying, that evening because he had been told his daughter was sick.

While his legal troubles revolve around the drunk-driving conviction, Fossella’s political career self-destructed for another reason -- the revelation that the married pol, whose wife and three children live on Staten Island, had a second family in Virginia.

In November, City Councilmember Michael McMahon, a Democrat, won the seat being vacated by Fossella. In so doing, McMahon captured a seat that has been in GOP hands for the better part of three decades.

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