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Update: I-Team 10 investigation: Judge rules ex-cop "manufactured" evidence, DWI cases get dismissed

Posted at: 11/20/2012 7:10 AM
Updated at: 11/20/2012 6:58 PM
By: Berkeley Brean

I-Team10 has learned that more than a dozen criminal cases have been affected because of the actions of a now former Fairport police officer. The ex-cop is accused by a town judge of fabricating evidence in small claims case that had nothing to do with his police work.

But the judge's decision ended up in front of the district attorney and on the desk of I-Team10.

This police officer, Phil Provenzano, was decorated for his work against drunk drivers. In fact he was going to be a witness in at least 15 DWI cases this summer. But his career and those cases fell apart after he went to court to fight over roughly $350 and a garage door on his new house.

Phil Provenzano was in Perinton court fighting his case with the man he hired to install the garage door, but who never finished the work. But by the end, Provenzano lost and the Judge Thomas Klonick's decision accused him of "attempted fraud"... "by introducing manufactured evidence."

Click here to read the judge's decision.

This was a cop who made his career arresting people for drunk driving. A village newsletter reported he made 50 percent of Fairport's DWI arrests.

The problem started when Provenzano produced an estimate and the cost for him to complete the work on the garage door that wasn't finished by the man he first hired.

This is where the judge ruled it got fraudulent.

The Estimate

The estimate was done by Provenzano's brother, Cory Provenzano, who was also the general contractor for his new home. But the estimate was done on the letter head of a different company -- MAJ Contracting -- and done without permission

Cory Provenzano testified that's "done all the time."

Provenzano testified he didn't want an estimate with his "brother's name" on it because the original installer "wouldn't have believed me."

Judge Thomas Klonick ruled the estimate costs were inflated, called the estimate "fabricated" and Provenzano's testimony "misleading and dishonest."

The DWI lawyer

"I was mortified that we would go forward and give false testimony in a case like that," DWI defense attorney Ed Fiandach said. His firm represents a handful of people arrested and charged by Provenzano.

"In spite of what people commonly think, the overwhelming majority of people plead guilty to a DWI charge particularly if their breath level is above .08," Fiandach said. "Clearly if he's the arresting officer those cases have to be dismissed."

The District Attorney

District Attorney Sandra Doorley says as soon as the small claims decision landed on her desk in the summer, her office started reviewing every case where Provenzano was involved.

"After reading the decision and learning of his resignation, those two facts coupled together in my mind made him unavailable to us as a witness," Doorley said. And since the decision, the DA's office dismissed four DWI cases entirely and parts of 11 other cases where Provenzano provided the DWI breath test.  

"Obviously it was a very difficult decision. There were a lot of DWI arrests that we had to dismiss," Doorley said.

Including the arrest of a woman we're calling Sally.

"We all make mistakes and it was just a mistake initially that I regretted from point A," Sally said.

After a night at a bar with some friends, Sally was pulled over by then Officer Provenzano and after a sobriety test he charged her with DWI.

Now, part of her feels relieved.

"So I'm pleased it's behind me and I can move forward and believe me, it will never happen again ," she said.

Statement from Provenzano's attorney

Mr. Provenzano greatly appreciated the Court's recent decision to sign an Order that enabled him to submit to the Court sworn affidavits and business records from the parties involved in this matter that shows his testimony to be truthful and accurate.  He is confident that these documents, which are now being reviewed by the Court, will completely vindicate his reputation and character.

(Tuesday Judge Klonick denied Provenzano's motion to throw out his original decision and seal the case. )
 
Relative to the decision of the District Attorneys' Office to not prosecute certain DWI cases, the reason for this decision is best addressed to the District Attorney's Office.  While Mr. Provenzano has left the Fairport Police Department to pursue a career in the financial services industry, he remains available to assist in the prosecution of any DWI case in which he was involved.  He has, however, not been contacted by the District Attorney's Office for such assistance.  

One more thing... "intimidating" the Court

There is one other element from the small claims decision.
The judge wrote that Provenzano made a "specific effort" to identify himself as a police officer even though his job had nothing to do with the case. Judge Klonick wrote, "the clear conclusion is that such disclosure was made for the sole purpose of attempting to either influence or intimidate the Court."