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State’s top court affirms Alexandria Bay man’s attempted murder conviction


The state’s highest court has rejected an Alexandria Bay man’s appeal of his attempted murder conviction, ruling that his legal rights were not violated during questioning of prospective jurors for his October 2009 Jefferson County Court trial.

Gunther J. Flinn, 28, contended that he was denied his right to be present at all material stages of his trial, specifically bench conferences during jury selection involving his attorney and potential jurors. The Appellate Division, Fourth Department, ruled in September 2012 that Mr. Flinn had been fully informed of his right to attend the sidebar conferences, but did not do so, thus waiving his right to be present.

Mr. Flinn appealed the decision to the state Court of Appeals, again maintaining that he never waived his right to attend bench conferences in which prospective jurors’ qualifications were discussed. In a decision released Tuesday, the state’s highest court affirmed the appellate court’s decision, stating that Judge Kim H. Martusewicz had properly advised Mr. Flinn and his attorney, Craig P. Schlanger, Syracuse, that Mr. Flinn had the right to attend the conferences.

The court also noted that Mr. Schlanger had advised Judge Martusewicz that he had discussed the right to be present with Mr. Flinn and Mr. Flinn “has waived that right.” The Court of Appeals said that it has repeatedly ruled that a defense attorney can waive a right on behalf of a client, even if it occurs outside the client’s hearing, on the belief that an attorney “may be trusted to explain rights to his or her client, and to report to the court the result of that discussion.”

The court’s ruling did not address a second claim brought by Mr. Flinn, that he was penalized for exercising his right to a trial, which resulted in his conviction on a second-degree murder count and other charges. The charges stemmed from a July 9, 2006, altercation with Jordan W. Culbertson on Walton Street in Alexandria Bay in which Mr. Flinn slammed Mr. Culbertson’s head to the sidewalk, causing brain damage.

Mr. Flinn pleaded guilty in May 2008 to second-degree attempted murder and was sentenced in July 2008 to six years in prison. In March 2009, the state Appellate Division, Fourth Department, ruled that his guilty plea had been “coerced” by Judge Martusewicz, who had warned Mr. Flinn that he faced the possibility of a longer period of incarceration if convicted of the crime at trial.

The appellate court returned the matter to County Court for further proceedings.

After being convicted at the October 2009 trial, Mr. Flinn was sentenced to 15 years in prison. He appealed that sentence to the Fourth Department, which ruled that a sentence imposed after trial can be more severe than one promised in connection with a plea agreement. The court further ruled there was no evidence in the record that Judge Martusewicz was motivated by “retaliation or vindictiveness” in the sentence pronounced after trial.

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