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A former state drug counselor serving a term of three years to life for drug dealing was granted a new trial Tuesday as a state appellate court branded improper a plea deal Erie County prosecutors gave to his co-defendant to bolster a drug case.

In a unanimous ruling, the five-judge Appellate Division of State Supreme Court overturned Fred A. Thomasula's May 26, 1988, drug conviction, ruling that prosecutors improperly arranged a plea deal that spared Thomasula's former co-defendant, Richard Pantano, a prison term.

In giving Pantano, 38, his deal in late 1987, the district attorney's office "subverted the clear legislative policy and intent" in state crime laws dealing with plea deals, the appellate court said.

District Attorney Kevin M. Dillon, who took over the prosecutor's post in June 1988, eight months after his predecessor, U.S. District Judge Richard J. Arcara, had made the Pantano deal, said he will fight the ruling because the courts didn't clarify plea-deal rules until last year.

The Rochester court, which heard arguments on Thomasula's behalf by noted New York City attorney William M. Kunstler two months ago, faulted State Supreme Court Justice Frederick M. Marshall for not telling the jury at Thomasula's May 1988 trial about the "unlawful" deal received by Pantano.

Because Marshall himself accepted the Pantano deal and gave him probation, and the deal wasn't challenged in the higher courts, Pantano can remain on probation for his own admitted drug dealing.

Pantano should have faced a mandatory prison term ranging from one to 25 years, the appellate court ruled.

Ronald L. Kuby, a Kunstler associate and Thomasula's co-counsel on the appeal, said efforts will be made to try to have Thomasula, jailed since May 1988, freed on bail by Friday afternoon.

Now an inmate at the Albion Correctional Facility, Thomasula, 45, is a former drug counselor and security officer for the state Division of Youth.

A youth division worker for 17 years, he was convicted in May 1988 of selling $5,800 in cocaine to undercover Erie County sheriff's deputies at his Auburn Street home in December 1986 and February 1987, but acquitted of trafficking in cocaine in April 1987.

At the time of his indictment in 1987, Thomasula was working at the state's Masten Park Secure Center, 495 Best St., a facility for troubled teen-agers.

Kuby said he and Kunstler agreed to accept the case when Thomasula's family came to them shortly after he was sent to prison in July 1988.

Pantano, a lifelong friend of Thomasula, had faced a life term in the case, but in October 1987, Marshall placed him on probation for five years and fined him $1,000 after prosecutors let him plead guilty to a reduced felony charge that made him eligible for probation.

The appellate court said Pantano, a Kenmore resident, was entitled only to a pretrial plea to a drug charge carrying a mandatory prison term. In getting Pantano the plea deal, prosecutors also violated state criminal law procedures for dropping the charges, the appellate court said.

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