Judge Leticia Astacio found guilty, ordered to stay jailed
David Andreatta
How much longer Rochester City Court Judge Leticia Astacio would spend behind bars hinged on what she knew and when.
Did she know the judge overseeing her drunken driving case had ordered her to submit to a urinalysis to test for alcohol consumption, and, if so, when did she know it?
Those questions were at the heart of a two-hour court hearing Thursday to determine whether she violated a condition of her DWI sentence by neglecting to take the test, which was ordered last month while she was abroad in Thailand.
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In the end, Astacio, who has been jailed since Monday and took the stand in her own defense, was found guilty of the violation and ordered held without bail until her next court date, July 6, when she is slated to be sentenced.
Astacio now faces whatever penalties she would have been subject to upon her original conviction, which include up to a year in jail.
Her attorney, Ed Fiandach, said he planned to appeal.
The decision by Judge Stephen Aronson immediately drew cries of, "Racist!" and "Racist cracker!" from the standing-room only gallery, to which Astacio, in her red jailhouse scrubs, turned and said, "I'm fine. I'm totally fine."
Aronson also rejected a plea from Fiandach to set Astacio free on her own recognizance until her sentencing.
"I simply fail to see the need for her continued incarceration," Fiandach said. "I think that to continue to incarcerate her for another 30 days is simply not required, it's not mandated and it's not necessary, and I don't think it would be appropriate."
Aronson had ordered Astacio to take an ethyl glucuronide test, or ETG test, after the ignition interlock device on her car registered a high blood-alcohol-content reading on April 29.
It was not clear who blew into the device for that reading, and subsequent re-tests performed by her daughter showed a clean blow. But Aronson said he wanted Astacio to take the urinalysis to alleviate any concern that Astacio may have been drinking.
Submitting to random court-ordered drug tests and abstaining from alcohol are among the conditions of the sentence Astacio received as a result of her drunken driving conviction in August 2016.
The test was not ordered, however, until after Astacio had left Rochester for a Thailand vacation on May 2. She did not take the test and submit the results to the court, as Aronson had directed her to do "immediately," until after her return on June 4.
The crux of the argument Thursday, then, became whether Astacio was notified of her obligation to take the test in a timely manner and, if so, whether she could have complied.
Testifying on her own behalf, Astacio appeared composed and concise and explained that she first learned of the order to take the test on May 27, when she received an email from Fiandach.
She testified that she had been out of touch with Fiandach for 20 days — from May 7 to May 27 — due to spotty and expensive cell phone coverage and a desire to "de-stress."
"I didn't have the ability to communicate with anyone by telephone or text message," she said, referring to that time period. "I was able to communicate with my family through social media."
"I was trying to de-stress and get away from all of this," she added. "I only wanted to talk to them and I spoke to them sparingly."
Fiandach mounted a spirited defense that noted that Astacio's original sentence placed no restrictions on her ability to travel, and that the urinalysis was unprecedented.
"I don't think anyone can fault her for leaving approximately after eight months on her conditional discharge when she had never before been asked to submit to ETG testing," Fiandach said.
He added that Astacio returned home as quickly as she could after learning of the court-ordered test and delved into the logistical complications of travelling 8,300 miles.
In his closing arguments, prosecutor Zach Maurer dismissed the notion that it should take Astacio over a week to return to Rochester, seizing on her testimony that she arranged her trip to Thailand on May 1 and was on a plane to Bangkok the next day.
Maurer noted that criminal defendants are routinely reminded to stay in touch with their attorney during the course of a pending case.
Astacio was convicted of drunken driving in August 2016 and sentenced to a one-year conditional discharge. The sentence was later extended to February 2018 after her interlock device found she had been drinking.
"It's your responsibility to stay in touch with your attorney," Maurer said in his closing arguments, "not your attorney's responsibility to find you halfway around the world to deliver a message."
Thursday marked the second time Astacio has been found guilty of violating the conditions of her sentence.
The hearing capped off an already eventful day in which news broke that Maurer had subpoenaed Fiandach to testify against Astacio.
Fiandach objected to the subpoena at the outset of the hearing, but the judge allowed it to stand after Maurer explained that the likelihood of his calling Fiandach to testify was slim.
Maurer said it was unlikely he would need Fiandach's testimony to prove that Astacio knew of her obligation to take the ETG test more than a week before she returned home.
The prosecutor said he would rely on statements Fiandach made in court two weeks ago in Astacio's absence that indicated she knew about the test.
Fiandach then objected to using those statements, arguing that he had inadvertently broken the attorney-client privilege because Astacio had not authorized him to discuss their communications in open court.
Aronson, the judge, allowed the statements to be entered into evidence but said he would reserve judgement on whether they were appropriate if they were cited in arguments at the hearing. They were not.
The developments were the latest bizarre episodes in a case that has had more plot twists than a paperback mystery.
Two weeks ago, when Astacio missed a court date to explain the whereabouts of her urinalysis, Fiandach revealed she had bought a one-way ticket to Thailand and that she did not intend to return until August.
Later that day, she instructed Fiandach to announce that she was living in a temple with monks in the mountains. Shortly thereafter, however, photos surfaced on Instagram of Astacio travelling the country like any other tourist.