FILED: APPELLATE DIVISION - 4TH DEPT 05/26/2023 02:03 PM KA 23-00471

NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/26/2023

STATE OF NEW YORK APPELLATE DIVISION

SUPREME COURT FOURTH JUDICIAL DEPARTMENT

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent

-vs- NOTICE OF MOTION

TO DISMISS APPEAL

JAMES KRAUSENECK KA 23-00471

IND.# 2019-0705

Defendant-Appellant.

PLEASE TAKE NOTICE that, upon the Attorney Affirmation of Senior

Assistant District Attorney Martin P. McCarthy, II, dated February 8, 2022, the

respondent will move this Court, at a term thereof, to be held at the Appellate

Division, Fourth Judicial Department, located at 50 East Avenue, Rochester, New

York 14604, on Monday, June 5, 2023, at 10:00 a.m., or as soon thereafter as

possible, for an Order pursuant to Criminal Procedure Law§ 470.60[1] and

People v Matteson, 75 NY2d 745 [1989], dismissing appellant's appeal on the

ground that the Defendant-Appellant is deceased and to remit the matter to

Monroe County Court for further proceedings, or granting such other and further

relief as the Court may deem just and proper.

DATED: May 26, 2023

SANDRA DOORLEY
Monroe County District Attorney,
Respondent
47 South Fitzhugh Street
Rochester, NY 14614

BY: Martin P. McC rt , II

Senior Assistant District Attorney

To: Brian Shiffrin, Esq.

16 West Main Street
Suite 243
Rochester, NY 14614

-2-
STATE OF NEW YORK APPELLATE DIVISION
SUPREME COURT FOURTH JUDICIAL DEPARTMENT

THE PEOPLE OF THE STATE OF NEW YORK,

-vs-
ATTORNEY
AFFIRMATION

JAMES KRAUSENECK, KA 23-00471

IND. # 2019-0705

Defendant-Appellant.

I, Martin P. McCarthy, II, do affirm under penalty of perjury that the

following is true to the best of my knowledge:

1. I am an attorney admitted to practice in the State of New York and I am a

Senior Assistant District Attorney in and for the County of Monroe. As

such, I was assigned to the above-captioned matter and am thus duly

familiar with the facts.

2. I make this affirmation in support of respondent The People of the State of

New York's motion pursuant to CPL§ 470.60 (1) and People v Matteson,

75 NY2d 745 [1989] for an order dismissing appellant's appeal on the

ground that the appellant is deceased.

 3. This affirmation is made upon personal knowledge and upon information

and belief based upon a review of the respondent's records, and appellant's

filings and documentation under this docket.

4. Appellant was convicted after trial of Murder in the Second Degree on

September 26, 2022 in Supreme Court, Monroe County, and on November

7, 2022, Supreme Court Justice Charles A. Schiano, Jr. Sentenced the

Defendant to an indeterminate sentence of 25 years to life.

5. The Appellant filed a notice of appeal on November 9, 2022 and an appeal

was subsequently perfected on May 17, 2023. A copy of the Court's

scheduling order is attached as Exhibit 1.

6. Appellant passed away on May 10, 2023. A copy of the appellant's death

certificate is attached as Exhibit 2.

1
7. Despite having passed away on May 10, 2023, appellant's former counsel

perfected this appeal.

8. Putting aside the fact that a client's death automatically terminates the

attorney client relationship and makes the continued representation of the

deceased appellant impossible (see, Velasquez v Katz, 42 AD3d 566, 567

[2d Dept 2007]), continued prosecution of this appeal is no longer possible

-4-
 as the appellant's death abates the appeal (People v Mintz, 20 NY2d 753,

754 [1967]).

9. Abatement is required because as the Court of Appeals has held "If

affirmed, the judgment of conviction could not be enforced and, if reversed,

there is no person to try" (People v Mintz, 20 NY2d 753, 754 [1967]).

10. Though defense counsel attempts to argue in the brief filed in this matter

that the appellant waived his rights to automatic dismissal under People v

Mintz, abatement by death is not subject to waiver or forfeiture (see People

v Matteson, 75 NY2d 745, 747 [1989]).

11. The abatement by death doctrine is applied ab initio such that even when an

appellate court renders a decision with lack of knowledge that a defendant

has died during the pendency of an appeal, the decision is vacated, the

appeal is dismissed, and the matter is remitted with directions to dismiss the

indictment (see e.g. People v Carey, 124 AD3d 982 [3d Dept 2015] (On its

own motion, the Third Department vacated its memorandum and order dated

January 8, 2015 on the ground prosecution abated upon the defendant' s

death on December 30, 2014); see also People v Lewis, 196 AD3d 968,969

[3d Dept 2021 ]).

12. Defense counsel's claims in the appellate brief that the appellant's death

does not moot the appeal because dismissal pursuant to People v Matteson

is a "technical" dismissal which "would not adequately address his loss of

reputation and the harm to his surviving family" (Appellant's Brief at p. 27)

is not a recognized exception to the mootness doctrine (Hearst Corp. v

Clyne, 50 NY2d 707, 714 [1980]).

13. Defense counsel's claim that any errors in the trial court's decision (People

v Krauseneck 73 Misc 3d l 227(A) [2021]) are likely to repeat is also not an

exception to the mootness doctrine as the exception requires both that the

errors repeat and that "by virtue of their relatively brief existence, would be

rendered otherwise nonreviewable" (People v Baldwin, 39 NY3d 1097,

1098 [2023] (Wilson, J. concurring)).

14. Thus,, this appeal should be dismissed and the matter remitted to Monroe

County for further proceedings (People v Johnson, 193 AD3d 1444 [4th

Dept 2021 ]).

WHEREFORE, respondent respectfully requests that this Court enter an

Order dismissing this appeal pursuant to CPL§ 470.60 and People v Matteson, 75

NY2d 745 [1989], and remit the matter to Monroe County Court for further

proceedings.

-6-
 Affirmed under penalty of perjury pursuant to CPLR 2106 this 26th day of

May, 2023.
SANDRA DOORLEY
Monroe County District Attorney

BY: Martin P. McCarthy, II

Senior Assistant District Attorney
EXHIBIT 1
 APPELLATE Ds,YlR~\Wcou\VbF,trt s~½2E36im +b~BI~~
KA 23-00471
!FILED:
NYSCEF DOC. NO. 34 NYSCEF: 05/23/2023
appellate i.lBibision, jfourtb JI ubictal i.lBepartment

KA 23-00471
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

JAMES KRAUSENECK, DEFENDANT-APPELLANT.

Indictment No: 2019-0705

The above-referenced appeal has been perfected and has been

scheduled for the term of Court commencing MONDAY, NOVEMBER 27, 2023,
which will be approximately 10 days in length. Counsel, or the parties
if not represented by counsel, will receive a notice to appear for
oral argument not less than 20 days prior to the term (see 22 NYCRR
1000.15 (c)).

Respondent shall electronically file a brief on or be f ore June

16, 2023. Respondent shall file 6 hard copies of the brief, with proof
of service of the brief, within 2 business days of receipt o f e-mail
notification that the Clerk has approved the electronic filing (see 22
NYCRR 1245.6 [a]). The time requested for oral argument, if any, must
be noted on the upper right - hand corner of the brief. If no time is
requested, the matter will be deemed submitted (see 22 NYCRR 1250.15
(c] [3]). If no respondent's brief will be filed, counsel, or
respondent if not represented by counsel, shall notify the Clerk's
Office in writing within 30 days of service of appellant's brief.

Counsel, or the parties if not represented by counsel, must

notify the Clerk's Office in writing within 15 days of the date that
this scheduling order was mailed of unavailability for oral argument
on a specific date or on specific dates during the term (see 22 NYCRR
1000.15 [b]).

All papers filed and served in this matter shall bear the above-
referenced Appellate Division docket number (see 22 NYCRR 1250.1 [fl).

The failure to comply with any provision of the Court's Rules,

including the failure to comply with applicable deadlines, may result
in the imposition of sanctions (see 22 NYCRR 1250.1 [h]). This
scheduling order constitutes the order of the Court .

Entered: May 23, 2023 Ann Di l lon Flynn

Clerk of the Court
EXHIBIT 2
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