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The Brooklyn Paper / Jeff Bachner

Rep. Vito Fossella got hit with a five-day jail sentence for his drunk driving conviction, but his appeal trigged an automatic retrial. Yes, Virginia, there is a Santa clause for the scandal-tarred, lame duck congressman.

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Disgraced Rep. Vito Fossella has been ordered to spend five days in jail later this month for drunk driving, a Virginia judge ruled on Monday — but the lovechild-siring congressman may escape prison, thanks to a state law that awards him a brand new trial.

Minutes after Judge Becky Moore hit the Bay Ridge Republican with the mandatory five-day sentence, Fossella appealed, triggering Virginia’s automatic re-trial, this time by jury.

“The legal process in Virginia is a lengthy one,” said Barry Pollack, Fossella’s attorney. “[This is] the beginning of the process … which is a right to a trial by jury,” he told the Staten Island Advance.

Fossella, in Congress since a 1997 special election, was convicted on Oct. 17 for drunk driving stemming from a May 1 binge that started with a few glasses of wine, led to ill-advised excursion to his mistress’s house and his eventual arrest after going through a stop light.

The arresting officer testified in court that Fossella was so loaded that he could not recite the alphabet. The cop told the legislator to begin with the letter “D,” and Fossella forgot popular letters “G” and “N” in the test.

The arrest was one thing, but Fossella made another crucial error with his one phone call at the precinct: he called his mistress to bail him out.

Once reporters discovered that nugget, it wasn‘t long before the full truth was revealed: that Fossella also had a daughter with the mistress, a revelation that ended his political career. Fossella decided to not seek re-election when amid the consuming scandal.

In Monday’s hearing, Fossella’s legal team tried to convince the judge to go easy on the five-full-term congressman, claiming the Breathalyzer test malfunctioned. But their star witness, a toxicologist, failed to show up in court to dispute the Virginia police blood alcohol reading of .17.

Fossella had spent that day hobnobbing at the White House, where the Super Bowl champion New York Giants were toasted, and then carousing out on the town, according to various press accounts shortly after the arrest made front-page news.

Democrats seized the golden opportunity to reclaim the only Republican seat in the city — and Councilman Mike McMahon (D–Staten Island) soundly thrashed GOP nominee, Bob Straniere in November.

There is talk that Fossella will try to revive his political fortunes with a run in 2010, but constituents indicated that such a run would be foolhardy for the family values pol.

“I feel the same way about athletes as I do about politicians — you’re supposed to set an example and that’s no example,” said Barbara Light, a Bay Ridge activist who said she has voted for Fossella in some elections.

Others said his criminal record would tarnish an otherwise positive record of service.

“I can’t condone drunk driving,” said Eileen Sacco, president of the 68th Precinct Community Council. “No one should drive drunk.”

©2008 The Brooklyn Paper

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