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Appellate court upholds attempted murder conviction of Alexandria Bay man


A state appellate court has upheld the attempted-murder conviction of an Alexandria Bay man who earlier had won reversal of the conviction, only to be sentenced later to more than twice as long in prison after being found guilty at trial.

Gunther J. Flinn, 28, was convicted in October 2009 following trial in Jefferson County Court of second-degree attempted murder, first- and second-degree assault, two counts of first-degree intimidating a witness, second-degree obstructing governmental administration, second-degree harassment, resisting arrest and disorderly conduct. 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 had 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 Kim H. 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 the conviction at trial, Mr. Flinn was sentenced in November 2009 to a total of 15 years in prison. He again appealed to the Fourth Department, contending 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. In a decision released Friday, the appellate court ruled 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 also maintained that County Court erred in not including the lesser offenses of first-degree attempted assault or second-degree assault in its charge to the jury, but the higher court ruled there was “no reasonable review” of the evidence to support that Mr. Flinn committed the lesser offenses, but not the greater offense of first-degree assault.

Among other things, Mr. Flinn also contended that he was unconstitutionally punished for exercising his right to trial. Citing case law, the appellate court ruled that a sentence imposed after trial can be more severe than one promised in connection with a plea agreement. The court ruled that there was no evidence in the record that Judge Martusewicz was motivated by “retaliation or vindictiveness” in the sentence pronounced after trial and that the sentence was not unduly harsh or severe.

Trial testimony suggested that Mr. Culbertson underwent negative personality changes after suffering the head injury. He committed suicide in February 2009 at the age of 23.

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