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A state appeals court Wednesday overturned William J. Hayes' murder conviction in the 1983 strangulation of a Cheektowaga waitress.

The court faulted the judge in the case for commenting on the defendant's failure to testify at the trial and for letting the jury hear about an unrelated death plot.

Hayes, 27, now serving a life prison term in the Wende Correctional Facility, was granted a new trial murder of Sandra Wielinski, 28, whose body was found along Cayuga Creek near William Street and Harlem Road four days after she was slain Dec. 7, 1983.

Police said she was abducted from Brownie's on Shanley Street during an early morning robbery as she was alone and closing the tavern.

Hayes, of Shanley Street, was questioned shortly after the slaying, but prosecutors didn't seek his indictment until 1987, after Cheektowaga police found witnesses who said Hayes made remarks about the slaying.

In a unanimous ruling, the Appellate Division of State Supreme Court in Rochester said Erie County Judge Timothy J. Drury erred when he reminded the jury Hayes didn't testify. The court said Drury should not have told the jury it could not consider Hayes' refusal to testify as an "unfavorable" point against him. It noted that Gerald P. Gorman, Hayes' trial attorney, didn't ask the judge to make such a comment.

Drury's error prejudiced a case in which the proof of Hayes' guilt "was not overwhelming," the court said.

The appellate court also agreed with Lisa Barnard, an attorney for the Buffalo Legal Aid Bureau, that Drury erred in letting the jury hear testimony about Hayes' alleged involvement in a plot to kill a Buffalo-area man.

Drury allowed the testimony to support prosecution contentions that Hayes told others he had killed Ms. Wielinski.

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