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State’s top court weighs Alex Bay man’s appeal of attempted murder conviction


The state’s top court is weighing the appeal of an Alexandria Bay man who is serving a 15-year prison term after an attempted-murder conviction, but who claims he was penalized for taking his case to trial.

The state Court of Appeals heard oral arguments Jan. 14 in the appeal of Gunther J. Flinn, 28, and a ruling is expected within about 30 days. Mr. Flinn 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 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 more than twice the time to which he originally had been sentenced. He appealed again to the Appellate Division, contending that he was unconstitutionally punished for exercising his right to trial. Citing case law, the appellate court ruled in September 2012 that a sentence imposed after trial can be more severe than one promised in connection with a plea agreement. The court ruled there was no evidence in the record that Judge Martusewicz was motivated by “retaliation or vindictiveness” in the sentence pronounced after trial.

Mr. Flinn also maintained 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 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.

In his Court of Appeals action, he claims the waiver by his attorney of his right to be present was invalid because it was not done in his presence and it was never placed on the record or repeated to him.

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