HALFMOON -- John W. Cole's appeal of his Saratoga County assault conviction in connection with a car crash has been unanimously rejected by a mid-levels appeals court.
The Third Department Appellate Division of state Supreme Court in Albany ruled 4-0 that the Clifton Park man, owner of a Capital Region chain of auto collision shops, was justifiably convicted and sentenced to seven years in prison for a March 11, 2017 crash in Halfmoon that left one of his passengers paralyzed.
"Defendant maintains that the verdict convicting him of assault in the second degree was against the weight of the evidence. We disagree," the judges wrote in a decision released Thursday.
It also found that County Court Judge James A. Murphy III did not abuse his discretion in sentencing Cole to the maximum allowed for second-degree assault, seven years in state prison. It found that Murphy should not have allowed prosecutors to raise a 1991 burglary conviction if Cole testified, because Cole had no further arrests after that until the incident. But the judges said that error -- which the appeal said kept Cole from testifying in his own defense -- was "harmless" and didn't influence the verdict.
Cole, 54, has been free on $50,000 bond pending the outcome of the appeal. Saratoga County District Attorney Karen A. Heggen said she expects Cole to appear in County Court on Wednesday for a proceeding that could lead to Murphy ordering him to begin his sentence.
"We are pleased with the Appellate Division affirming the conviction, finding that the evidence proved beyond a reasonable doubt that Mr. Cole was guilty of the crime," Heggen said.
Paul Schechtman, the New York City attorney who handled the appeal, said he will ask the state's highest court, the Court of Appeals, to consider the case.
"I am disappointed in the court's decision, which found Judge Murphy's evidentiary ruling to be wrong, but the error to be harmless," he said. "I think the error was too serious and the evidence too weak for this to be harmless. We intend to ask the Court of Appeals to reconsider this decision."
Following a two-week trial in March 2018, a jury convicted Cole of assault and driving while ability impaired in connection with the crash. The same jury acquitted Cole of driving while intoxicated and vehicular assault.
According to trial testimony, on the night of the crash, Cole, his wife and several friends had dinner at the Rusty Nail in Clifton Park before going to see a band play at Trick Shot Billiards and Sports Pub, also in Clifton Park. Cole, who was driving a 2015 BMW 650i, was accused of accelerating the vehicle on Sitterly despite passengers urging him to slow down, leading to the vehicle going off the road and shearing a fire hydrant near an area where construction was going on. A state police investigation estimated his vehicle was traveling 78 mph in a 40 mph zone, according to testimony. The crash left passenger Deanna Shapiro paralyzed from the neck down.
While Deanna's husband, Scott, testified that Cole had been drinking alcohol through the evening, Cole's wife, Regina, testified that her husband "acted totally fine and was fine to drive" when they left Trick Shots. A state trooper testified that Cole appeared to be intoxicated, although he refused to submit to a blood alcohol test.
Cole is the owner of Cole's Collision, a vehicle repair business that has five locations in the Capital Region.