A state appeals court has declined to grant a new trial for a Frewsburg man convicted of second-degree murder in 2001.

Nicholas Osman was sentenced in 2001 by former Chautauqua County Court Judge John Ward to 40 years to life for second-degree murder and second-degree robbery in the Dec. 8, 2000, murder of Robert J. Olds, 42, formerly of Sugar Grove. In his most recent appeal, Osman’s attorney, Thomas Theophilos of Buffalo, argued that Chautauqua County Court erred when it refused sever the robbery trial from the murder trial after it granted Osman’s motion to sever his trial from that of Steven Bush, who was also charged and convicted on charges of second-degree murder and second-degree robbery. Osman also contended that he had been improperly compelled to wear a stun belt during his trial even though the court did not place on the record its findings that he needed such a restraint.

The Fourth Department Appellate Court of Appeals ruled against Osman on all three appeals. Chautauqua County District Attorney Patrick Swanson represented the county in the appeal, assisted by John Zuroski.

While Bush’s attorney moved to sever the robbery and murder charges against their client, a similar motion was never made on Osman’s behalf and Osman’s trial attorneys did not join in Bush’s motion.

The appellate judges ruled that trial counsel was not ineffective because they didn’t move to sever the robbery and murder cases because the counts were properly joined under the state’s Criminal Procedure Law. Before the trial, the court conducted a Cardona hearing which closed the courtroom for a portion of an informant’s testimony. Theophilos argued the courtroom was improperly closed, but the court ruled the contention had not been properly preserved for its review.

“We decline to exercise our power to review that contention as a matter of discretion in the interest of justice and we further conclude that defendant was nto denied meaningful representation when trial counsel failed to object to the closure inasmuch as ‘the prosecution established on the record adequate reasons for the closure even if defense counsel had challenged it,'” the appellate justices wrote.

Theophilos also argued that he was denied his right to due process by the presence of a news organization’s single video camera in the court room. While Osman’s attorneys objected at the time, the appellate court ruled that Theophilos failed to establish any actual prejudice resulting from the camera’s presence during the trial.

The final matter for appeal was the order that Osman wear a stun belt during the trial despite nothing in the record showing a stun belt was necessary. The appellate court ruled that is not grounds to reverse the court’s order denying Osman’s motion because Osman’s attorneys failed to object to the use of the stun belt and the improper use of a stun belt is not a mode of proceedings error.

“Thus, the failure to object to the stun belt’s use means that ‘reversal would not have been required’ on a direct appeal. As a result, even on the merits, there is no basis upon which to vacate the judgement of conviction,” the justices wrote. “Defendant further contends that trial counsel was ineffective in failing to object to the use of a stun belt. We disagree. The seminal case requiring that a court place findings of fact on the record before requiring a defendant to wear a stun belt is People v. Buchanan (2009) which was decided eight years after the judgement in this case. Although the court’s decision in Buchanan ‘did not announce new rules of law,’ we nevertheless conclude that trial counsel was not ineffective in failing to anticipate that procedural requirements established by the court’s decision in Buchanan.”

JUROR BIAS ALLEGED

Theophilos also contended that a new trial was needed because of errors during jury selection, in particular that the court erred in denying Osman’s attorneys challenge for cause to a first prospective juror and in seating on the jury a second juror who allegedly demonstrated actual bias. While Theophilos did not dispute that Osman’s attorneys did not use a peremptory challenge on the second joror, the appeals attorney did argue that the court should have obtained from that juror an unequivocal assurance of her impartiality. The appellate justices ruled that even if the court erred, reversible error would not have happened unless Osman’s attorneys had run out of peremptory challenges at the time or before the jury had been seated, and the appellate court wrote that the problem with the appeals is that there is no record of whether or not Osman’s attorneys had used all of their peremptory challenges.

Theophilos submitted evidence saying Judge Ward had a practice of having attorneys write their peremptory challenges on a slip of paper that would then be placed in the court’s file. In 2015, 14 years after the Chautauqua County Court judgement had been entered, Theophilos tried to review the slips of paper but found they were not in the court’s file.

“Defendant thus contends in appeals Nos. 1 and 3 that the loss of such vital court exhibits mandates that a new trial be granted or, in the alternative, that the matter be remitted for a reconstruction hearing,” the court wrote. “We reject those contentions.”

The Court of Appeals has stated that the loss of a transcript or an exhibit is rarely sufficient reason by itself to reverse a conviction. A reconstruction hearing can be ordered, but defendants must show good reason for a delay in requesting such a hearing and show that there are inadequate means to determine whether appealable and reviewable issues exist. The justices wrote that Theophilos did indeed show due diligence in trying to find the records, but the court ruled that Osman had no explanation for the 14-year delay between his conviction and direct appeal when there was nothing to prevent Osman from pursuing his case.

“Had defendant, through his former, privately retained appellate counsel, perfected his appeal in a timely manner, it is possible that the slips of paper might still have been with the file and it is highly probable that the relevant parties would have been able to recall whether defendant exhausted his peremptory challenges,” the court wrote. “Where, as here, the lengthy delay is attributable to a defendant’s action or inaction, the weight of appellate authority holds that the absence of the relevant transcripts or exhibits should be held against the defendant and the judgement affirmed. Inasmuch as the record does not establish that defendant exhausted his peremptory challenges, he is not entitled to reversal based on the alleged errors during jury selection.’

OTHER ISSUE RAISED

Theophilos also argued that Judge Ward erred in allowing James Subjack, former Chautauqua County District Attorney, to introduce evidence of threats Osman or Bush allegedly made to a robbery victim after a robbery was completed but before the murder of Mr. Olds. Theophilos argued that the threats to kill the robbery victim should not have been admitted on the robbery count because the robbery was fully completed and there was no force needed to retain the stolen property. With respect to the murder trial, Theophilos argued that the threats to kill the robbery victim were prejudicial and outweighed any probative value. That contention was rejected by the appellate court, which ruled the evidence was relevant to the crimes and the probative value of the statements was not outweighed by the danger it would be unfairly prejudicial or misleading to the jury.

Judge Ward admitted the evidence but welcomed Osman’s trial attorney to submit limiting instruction in regard to the statement, though the attorneys chose not to do so. The error did not, in the court’s view, deprive Osman of a fair trial.

Osman’s attorney also raised arguments about the use of a jailhouse informant by the prosecution. The appeals court ruled that none warrant reversing the conviction. The court correctly concluded the informant was not an agent of the police and that the informant’s conversations with Osman did not violate Osman’s right to counsel; the court’s failure to tell the jury it should consider any specific benefit given to the informant while weighing the testimony does not mandate reversal because the informant was cross-examined thoroughly as to his motives for giving possibly false testimony; and the court did nto abuse its discretion in preventing Osman’s trial counsel from inquiring into the informant’s prior activity and did not violate Osman’s right of confrontation in that the informant’s bad acts were collateral to the evidence in Osman’s trial.

Theophilos also alleged Subjack committed misconduct during his summation. Many of the contentions had not been properly preserved for review, and even if they had, any improprieties were not so egregious that they would have deprived Osman of a fair trial.