ROCHESTER – The performance by the defense was the key focus of an appeal of a 2001 Chautauqua County murder Tuesday morning in the New York State Fourth Appellate Court.
Thomas Theophilos is representing convicted murderer Nicholas J. Osman. Osman was convicted on second-degree murder and second-degree robbery in connection with the 2000 murder of Sugar Grove native Robert Olds in the Town of Busti.
Theophilos argued that Osman received ineffective assistance from his lawyer in regards to the usage of a stun belt throughout the case, including while he was testifying. Theophilos stated that the lawyer told Osman, “There’s nothing I can do about it,” when Osman reportedly expressed concern to his council.
Theophilos also argued that the judge didn’t give a reason on the record regarding their decision to have Osman wear a stun belt.
John Zuroski, Chautauqua County Chief Assistant District Attorney, said that there’s no evidence to suggest that Osman objected to wearing a stun belt.
“The record is moot as to the stun belt…there was no complaint registered,” Zuroski said.
One of the judges presiding over the arguments said that the stun belt may have been used due to the circumstances of the murder case.
“This was a brutal murder, where an innocent person had his head beat in and brains splattered all over the place by a log,” the judge said. Theopolis, however, argued that a stun belt can’t be used simply based on circumstances of the case. The lawyer cited multiple cases that the State previously heard.
In addition, Theopolis argued that Osman received ineffective assistance regarding the potential bias of at least one of the jurors who sat on the panel during the trial. “(One of the jurors) specifically said, ‘I can’t be fair in this case,'” Theopolis said. “It’s a murder case. I can’t give the defendant the presumption of innocence.”
The lawyer added that the juror should’ve been excused.
Zuroski said that the existing records show that Osman’s lawyer was rather effective when trying to defend him.
“If this court has reviewed the entirety of this record, to claim that this attorney’s ineffective for picking one, or two, or three minor things. He was tremendously effective,” Zurowski said. “This was a slug fest of a trial. Ed Fagan was a terrific attorney, and it’s evident in that record those two attorneys go toe-to-toe. Many of the errors that the defendant now claims are really responsive to the tactics of defense, which are strong. It was fisticuffs.”
Also discussed was the process in which the court maintained its records. Theopolos said that records were destroyed before an appeal could be heard.
“The court destroyed its own file, on an appeal of a murder conviction, that hadn’t even been perfected yet,” Theopolos said.
“We’ve got the record that we’ve got, and there’s no indication that all of the peremptory challenges have been utilized by the defense,” Zuroski countered during his turn to argue.
April 26 and May 3 are the next two dates in which decisions will be released by the Appellate Division, according to the Division’s website. WNYNewsNow will continue to follow the story.