HONESDALE – A defendant convicted in the drunken hit-and-run death of his cousin is arguing he had ineffective counsel during his trial last year.
Jason A. Day, 34, formerly of Buckingham Township, was convicted by a Wayne County jury in May 2015 on charges of homicide by vehicle while driving under the influence, accidents involving death or injury and DUI. He is serving a five- to 14-year term in state prison.
Nineteen-year-old Zachary Possemato of Hancock, N.Y., was struck and killed in May 2014 by a pickup truck operated by Day, his cousin, as the victim was walking alongside state Route 191 in northern Wayne County.
President Judge Raymond L. Hamill heard arguments Tuesday after Day filed a petition for post-conviction collateral relief, saying his lawyer at trial did not effectively represent him.
The district attorney's office opposed the petition, and the judge said he will issue a ruling in the near future. If the judge rules in Day's favor, the defendant could receive a new trial.
Day testified at yesterday's hearing that he wanted to plead guilty to avoid a trial that would have further traumatized the family, but his lawyer, Joseph McGraw of Carbondale, had guaranteed Day he would not be convicted of the most serious charge, homicide by vehicle while DUI.
“I understood (I was) not going to get proven guilty and had all the trust in (McGraw) and didn't want to go to trial,” Day testified.
Day, however, later acknowledged that he, and no one else, made the decision to go to trial rather than take a plea.
McGraw no longer represents Day, who is now represented by public defender Ashley Zimmerman.
McGraw testified he believed Day had a good chance for acquittal on the charge of homicide by vehicle while DUI, but said he never guaranteed an acquittal.
“(Day) made the ultimate decision, (to go to trial)” McGraw said.
Assistant District Attorney Patrick Robinson pointed out Day had until the end of his trial to take a plea but he did not do so.
The assistant DA also noted how Day acknowledged he had the final say in whether to plead guilty or go to trial, and the defendant chose the latter.
“I don't know what the basis of this (hearing is),” Robinson told the court.
Day is currently serving his sentence at Camp Hill.
On the day of the crash, Day had consumed about four 16-once cans of beer before crashing his truck into Possemato, who died instantly of blunt trauma.
No blood-alcohol test was taken since Day drove away after the crash. He had claimed he thought he hit a deer.