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July 29, 2014
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Ten-year-old DWI plea reversed; local resident files own appeal


SULLIVAN COUNTY, NY — John Kearney fought a drinking and driving charge for 10 years. His efforts finally paid off in August 2011 when a jury declared that he was not guilty of Felony Driving While Intoxicated (DWI). But it took the highly unusual step of seeking and winning his own appeal of earlier court action.

Here’s how it happened. In 2002, Kearney, a licensed practical nurse who lives on Briscoe Lake, was operating a free medical tent at one of the Woodstock reunions held at Yasgur’s Farm on Route 17B in Bethel. As residents in the area know, the reunions were controversial and, at this particular event, as Kearney relates it, police were systematically pulling over cars as they left the property.

In an account of the episode, Kearney wrote that Sullivan County Sheriff’s Deputy Paul Slavik pulled him over, claiming his “marker” light was out. Then, he wrote, “I tried to take a breathalyzer but would cough and sputter when I tried to blow. Later in the years I would be diagnosed with Pulmonary Fibrosis and became ‘permanently and totally’ disabled from the dust, microscopic glass and ashes I breathed working two days straight without sleep at the ‘pile’ at the World Trade Center and even now am on supplemental oxygen, but even I didn’t know that then!”

Unable to provide an adequate sample for the breathalyzer, Kearney was charged with felony DWI and with refusing to take the test. Later, Kearney won a decision saying that he did not refuse the breathalyzer test.

In August 2003, a week before his trial was to begin, Kearney’s ex-wife died (he had to attend to the burial) and his 15-year-old daughter, Veronica, had to move back into his house with him. But Judge Frank LaBuda, according to Kearney, was reluctant to postpone the trial.

On the day the trial was to begin, with a very high-profile murder case set to start immediately after Kearney’s trial, LaBuda told Kearney’s legal aid attorney, Stephen Schick, to try to obtain a plea bargain. According to Kearney, Schick told him LaBuda was not going to dismiss his case even though a key prosecution witness did not show up. Schick said the jury would not be told that Kearney had won the breathalyzer hearing. Schick said to him if he was convicted he would be sent to jail. “What then will happen to your daughter?” he asked.

The plea bargain stipulated that if Kearney pleaded guilty, he would pay only a $500 fine and receive no probation or court-ordered counseling. Against this backdrop, Kearney did plead guilty.

Ten years went by, Veronica graduated from New York University, and Kearney figured she would be safe now, regardless of whether he went to jail.

According to Kearney, part of the plea agreement was that Kearney would receive a “certificate of relief,” which meant he would suffer none of the civil ramifications of pleading guilty to a felony, such as not being able to vote. When in 2009 LaBuda ruled that Kearney would not be granted a certificate of relief, Kearney himself filed an appeal in the NYS Appellate Court. According to court documents, the court essentially sided with Kearney, and LaBuda scheduled a new trial.

Glenn Kroll, the new court-appointed attorney, said the most unusual part of the case was that Kearney filed his own appeal and won.

The new trial was held in August of this year, and the jury found Kearney not guilty of felony DWI. They found him guilty of Driving While Ability Impaired, which is essentially the equivalent of a traffic ticket, and the ticket for the light being out.

Kearney said that he would fight this verdict also, because, he claims, in closing arguments the prosecution falsely claimed that his mother, now suffering from Alzheimer’s, had forged a document from a Sam’s Service Station in Liberty, which was serving as the police impound, that showed that the light on the vehicle, which was supposed to be out when he was originally stopped 10 years earlier, was actually working.
Also, he claims that a police officer perjured himself on the stand.

This story is being printed now partly because Kearney is circulating a “public complaint” around the county criticizing some news outlets for reporting on the initial guilty plea, but not reporting that the case was overturned in August. This is the first story about this matter to run in The River Reporter.