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The State Court of Appeals has denied a request for an appeal from James Swan, 40, of Dayton, who was convicted in 1988 of the shotgun death of a state trooper.

Swan was found guilty of first-degree murder in the shooting death of Gary Kubasiak of Gowanda on Aug. 30, 1982, at the home of Swan's mother on Route 62. Swan was convicted after a 1984 jury trial before County Judge James F. Crowley.

That conviction was reversed for two reasons given by the Appellate Division of State Supreme Court in 1987. The court said Swan was not permitted to waive a jury trial and jurors were not questioned on their ability to remain impartial after a break of several months during the trial.

The recess came after Swan escaped from a holding cell outside the courtroom and eluded a police manhunt for three days. After he was captured Swan was sent to Rochester for several weeks for psychiatric evaluation before the trial resumed.

In 1988 Swan was retried during a jury trial held before State Supreme Court Justice Frederick M. Marshall. Swan was again convicted of first-degree murder and related charges. Earlier this year that conviction was affirmed by the Appellate Division.

It was after that ruling that Swan applied to the Court of Appeals. In the state's highest court either a judge of the Appellate Division or the Court of Appeals must give permission for a case to be heard and it must show merit or present novel questions of law. After a review of Swan's application it was denied by Justice Stewart F. Hancock.

Cattaraugus County District Attorney Larry Himelein, who prosecuted at both of Swan's trials, commented, "Hopefully this matter can now be put to rest. Enough people have suffered enough over the last eight years and it is my fervent hope that this will be the end of this matter."

Swan is serving a life sentence in a state prison.

During Swan's first trial he was defended by attorneys Thomas C. Brady of Salamanca and Michael P. Nevins of Olean. In the second trial his attorneys were Raymond Bulson of Portville and Nevins. All were court appointed since Swan was unable to pay for his defense.

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