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SWAN CONVICTION UPHELD IN DEATH OF TROOPER

A state appellate court upheld James J. Swan's second conviction in the 1982 slaying of a state trooper at Swan's Dayton home.

In a unanimous ruling, the five-member Appellate Division of State Supreme Court in Rochester upheld Swan's first-degree murder conviction on Aug, 16, 1988, in the fatal shooting of Trooper Gary E. Kubasiak, and his sentence, 42 years to life.

In a decision written by Justice John J. Callahan of Buffalo, the court rejected Swan's challenges to grand jury proceedings and prosecution use of a damning statement to rebut Swan's insanity defense.

The appellate court also rejected Swan's complaints about State Supreme Court Justice Frederick M. Marshall's refusal to order mental testing before the retrial.

Swan, 40, shot Kubasiak three times at Swan's Dayton home on Aug. 30, 1982. Kubasiak and other troopers had gone to the home to check reports of a dispute between Swan and his mother.

The appellate court, which overturned Swan's September 1984 conviction in July 1987 due to errors by another judge, said Marshall had no reason to order mental testing because there was no evidence of "bizarre, erratic or inappropriate behavior" by Swan during his two-week retrial.

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