Edward Dashnaw being escorted to his 2011 retrial after his original conviction was thrown out by the Third Department. The first-degree murder conviction resulting from his second trial was upheld this week. (WPTZ NewsChannel 5)
ALBANY – A North Country man convicted at retrial of a grisly double murder is not entitled to a third trial even though the judge told prospective jurors that he was “stuck” retrying the case after the first conviction was tossed on a “technicality,” a state appeals panel has held.
The Appellate Division, Third Department, said despite Clinton County Judge Patrick McGill (See Profile) telling potential jurors that Edward Dashnaw had been previously convicted, he also “appropriately and repeatedly” reminded them that the defendant was presumed innocent.
Thursday’s holding in People v. Dashnaw, 104768, marked the second time the Third Department has reviewed the defendant’s first-degree murder conviction.
The panel threw out the original conviction in 2011 (85 AD3d 1389), ruling that McGill should have suppressed a statement the defendant made after invoking his right to counsel. But on Thursday, the court said that Dashnaw was afforded a fair trial the second time around.
Dashnaw was convicted of first-degree murder and related counts in connection with the stabbing deaths of a couple who ran a furniture business adjacent to their Schuyler Falls home.
The defendant, whom the couple had hired to deliver furniture, was convicted of stabbing a man 32 times and stashing his body in the basement. The victim’s wife was stabbed 10 times with a steak knife and her body was hidden in a loft.
Dashnaw’s appellate attorney, Mitch Kessler of Cohoes, argued on appeal that McGill had infected the jury pool with his comments about the first trial and erred in allowing the defendant to discharge his lawyer midway through the retrial and proceed pro se.
In a unanimous opinion by Justice John Egan Jr. (See Profile), the Third Department found no reversible errors in the second trial.
Egan said that McGill’s comments to the jury pool were directed either at a panel of potential jurors that was struck in its entirely or to a group from which only three alternates were chosen.
“In any event, viewed in the context of voir dire as a whole, these isolated statements did not deprive defendant of a fair trial,” Egan wrote.
The court also said Lake Placid defense attorney Gregory Laduke’s failure to object to the comments did not amount to ineffective assistance.
“Counsel’s tactical decision to thoroughly explore each potential juror’s prior knowledge of the case in an effort to ascertain the extent to which either the pretrial publicity or this court’s reversal of the prior judgment of conviction may have influenced the juror’s ability to return a fair and impartial verdict reflected a legitimate trial strategy,” Egan wrote in an opinion shared by Presiding Justice Karen Peters (See Profile) and justices John Lahtinen (See Profile) and Robert Rose (See Profile).
The court also said that McGill “conducted a sufficient inquiry” before permitting Dashnaw to discharge Laduke mid-trial and to represent himself.
It acknowledged that the Court of Appeals had held that once a trial has commenced, a defendant’s “right [to proceed pro se] is severely constricted and the trial court must exercise its sound discretion and grant the request only under compelling circumstances” (see Matter of Kathleen K. (Steven K.), 17 NY3d 380 (2011).
Here, however, the Third Department said McGill “repeatedly and in great detail … apprised defendant of the perils and pitfalls of proceeding pro se and went to great lengths to dissuade him from doing so.”
Kessler said he will seek leave to appeal.
“I have never encountered a case before where a judge told an entire panel of jurors that the case was a retrial after a reversal,” Kessler said. “Once that elephant is in the room, I don’t see how the prospective jurors could ignore it, especially when you have words like ‘technicality’ bandied about.”
Clinton County District Attorney Andrew Wylie, who argued the appeal Feb. 20, was not immediately available for comment.