(PILED: APPELLATE DIVISION - 4TH DEPT 06/02/2023 04:29 PM ee NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 06/02/2023 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH DEPARTMENT. THE PEOPLE OF THE STATE OF NEW YORK AFFIRMATION IN OPPOSITION KA 23-0705 -vs- Indictment # 2019-705 JAMES F. KRAUSENECK, Defendant. William T. Easton, Esq,, affirms the following under penalties of perjury: 1. Lam anattorney licensed to practice in this Court and have been retained by James Krauseneck, along with Brian Shiffrin and Cheryl Meyers Buth (of counsel) to perfect his appeal from a conviction of Murder in the Second Degree from Monroe County Supreme Court. 2. Lalso served, along with Michael Wolford and Ms. Meyers Buth, as trial counsel for Mr. Krauseneck and am duly familiar with the record of this case. 3. I submit this affirmation in opposition to the Prosecution’s motion filed on May 26, 2023 to dismiss the appeal and remand to the trial court to dismiss the indictment. A. Procedural History4. On November 7, 2022, Mr. Krauseneck was sentenced to 25 years to life in prison for the murder of this wife which had occurred 40 years prior to his sentencing. 5. Approximately three months after his sentencing he was diagnosed with end-stage esophageae cancer. 6. His medical condition deteriorated rapidly and resulted in his hospitalization at Albany Medical Center. A Ms. But and I visited him at Albany Medical Hospital on February 23, 2023 at which time he had lost at least forty pounds from his weight at trial. He was steadfast in his desire that his appeal continue even after his death. 7. Upon his discharge from the hospital, he was returned to prison, this time at Mohawk Correctional Facility where he received palliative care. 8. Mr. Krauseneck was well aware of his pending death and conveyed to me in legal calls his desire to have his brief filed after his death regardless of its, dismissal as a matter of law. 9. On April 16, 2023, Sharon KRAUSENECK visited her husband and she read to him an authorization and directive regarding his wishes to continue the appeal posthumously. (Exhibit G). He authorized the directive, although his medical condition prevented him from physically signing at the time 210. Based on his terminal medical illness, his statutory ineligibility for medical parole or an appeal bond, and the strength of his appellate issues, on April 21, 2023, Ms. Meyers Buth and I prepared a writ of habeas corpus pursuant to CPLR Article 70. 11. On April 19, 2023, Ms. Meyers Buth and I had visited him again, this time at Mohawk Correctional Facility to read him the writ we intended to file on his behalf. 12. He repeated his strong desire that his appeal be pursued independent of whether the writ was granted. At this time, his condition had deteriorated even further than when we had last visited him with his weight being less than 110 pounds at this time. 13. We filed and served the writ of habeas corpus on April 21, 2023 (Exhibit A). 14. After service, the New York State Attorney General on behalf of the Department of Corrections acknowledged service on behalf of Mohawk Correctional Facility but indicated it would not appear in the action to oppose the writ. 15. The Monroe County District Attorney opposed the writ and filed opposition papers. (Exhibit B) prompting a Reply on April 26, 2023(Ex1 it C). 316. During oral argument of the writ, I represented to the Court that given the size of the record and our recent receipt of the transcript, the earliest possible date we could submit the brief was mid-May. 17. On April 28, 2023, the Court issued a text Order denying the writ. In its text order the Court stated that if Mr. Krauseneck filed his brief at the time I represented at oral argument (mid May) then the Court would “endeavor” to expedite the appeal to the September term.(Exhibit D). 18. Mr. Krauseneck died a week later on May 5, 2023'. On the same date 1 informed the prosecution that I intended to file the brief pursuant to the representations I made at oral argument before Justice Lindleyi. (Exhibit E). 19. On or about May 17, 2023, | filed a record and brief on behalf of Mr. Krauseneck. (Exhibit F is a copy of the brief) 20. The brief was limited to two issues: (1) whether Mr. Krauseneck was deprived of his right to due process by the 40-year delay between the date of the offense and his trial; and (2) whether the proof adduced at trial was against the weight of the evidence, or otherwise insufficient. 21. Notably, both issues are dispositve. Neither would result in anew “The prosecution incorrectly states in its motion that Mr. Krauseneck died on May 10, 2023. His date of death was May 5, 2023 as reflected in the Death Certificate (Exh B attached to Prosecution’s Motion)trial. In essence, the defense argument is binary. The delay either deprived Mr. Krauseneck of due process, or it did not. Neither conclusion involves a retrial Similarly, the proof either survives a weight of the evidence review or not. Neither result would require a re-trial. 22. On May 23, 2023, the Court issued a scheduling order requiring the prosecution to submit its answering brief on or before June 16, 2023, B. _ Prosecution’s Motion to Dismiss Appeal and Remand to have Indictment Dismissed 23. Instead of filing an answering brief, the Prosecution filed a motion to dismiss the appeal and remand the case to the trial court to dismiss the indictment. 24. In its motion, the prosecution asserts three arguments in support of its motion. All these arguments are baseless. a, The Prosecution Incorrectly Asserts that Mr. Krauseneck’s Right to Counsel “Automatically” Terminates upon His Death. 25. The prosecution first characterizes Mr. Krauseneck’s counsel as “appellant’s former counsel” and asserts that Mr. Krauseneck’s death “automatically terminates the attorney client relationship and makes the continued representation of the deceased appellant impossible” (People Motion 4 6-8 p. 4). 26. ‘The prosecution offers no support for this sweeping claim. The onecase the prosecution alludes to (Velazquez v Katz, 42 AD3d 566 (2d Dept. 2007) a civil case involving legal malpractice claim for failure to probate a will, does not remotely stand for that proposition. 27. More telling still, is that the two Court of Appeals cases relied on by the prosecution in the body of its motion (People v Mintz 20 NY 2d 753 [1967]) and Matteson, 75 NY2d 745 [1987]) implicitly recognize the defendant's appellate counsel as the proper representative of the deceased appellant. In fact, in Mintz the Court explicitly authorized the appellate counsel to bring the motion to dismiss on behalf of his deceased client. (People v Mintz at 747. b. The Prosecution Asserts Incorrectly that the Abatement by Death Doctrine is Non-waivable by Defendant. 28. The prosecution asserts with little logic or authority that the abatement by death doctrine is not waivable by the defendant. Citing People Matteson, 75 NY 2d 745, 747 (1989) the prosecution claims in its motion that the abatement doctrine is not subject to waiver apparently under any circumstances, 29. Matteson, however, does not remotely stand for that proposition. Instead, the Matteson Court rejected the prosecution’s argument that a defendant’s suicide operates as a waiver of his entitlement to the abatement doctrine. 30. The mere fact that suicide by itself does not operate as a waiver is afar cry from holding that a waiver is impossible under any circumstance. Indeed, if'a waiver were impossible under any cireumstances, it would be logical for the Matteson to state this rather than limiting its holding to a suicide scenario. 31. The facts of Mr. Krauseneck’s explicit and informed waiver stand in stark contrast to the implicit waiver by suicide in Matteson. Thus, the Matteson holding has little bearing on Mr. Krauseneck’s informed ability to waive the abatement doctrine. 32. Also, it bears emphasis that the prosecution does not assert that the abatement doctrine is jurisdictional or statutory. Such a claim would fail; the doctrine is a court created rule and as such can be modified by the Court as it sees fit. As such, there is no reason why the abatement doctrine is not subject to waiver or modification to reflect the individualized circumstances before the Court. Tellingly the prosecution proffers no such reason in light of the unique facts of Mr. Krausencck’s case, who as the deceased criminal defendant is the putative beneficiary of the dismissal of the indictment. C. The Prosecution Incorrectly Asserts that the Issue is Moot and Outside of the Exceptions of the Mootness Doctrine 33. In its motion the prosecution misapplies the mootness doctrine and its exceptions.34, First, as we alleged in our brief (Exhibit C at pp. 25-30), Mr. Krauseneck’s claim is not moot. He suffers a very real harm, not a hypothetical harm, even after his death. This damage stems from his reputational loss and the effects on his surviving family members. 35. The dismissal of the indictment by operation of law does not meaningfully ameliorate this harm. In People v. Schectman 76 Misc 3d 1118, 1121 [Sup Ct. 1987)), the court held that an abatement dismissal of an indictment does not serve as a “colorable claim of innocence” required for a legal malpractice case by the Court of Appeals (Carmel v Lunney 70 NY2d, 169 173 [1987{]). Thus the difference between an abatement dismissal and a dismissal on the merits is far from subjective but rather based in demonstrable differences between the two dismissals. 36. Even if could be argued that Mr. Krauseneck’s death brings his case under the mootness doctrine, Mr. Krauseneck’s appeal squarely falls within the recognized exceptions to the mootness doctrine. 37. In Matter of Hearst Corp v. Clyne, 50 NY 2d 707, 714 [1980] the Court held that the mootness doctrine may be inapplicable where: © the issue is likely to recur; © the issue will typically evade review; 8© the issue presents a “weighty or important question” not previously explored. 38. Mr. Krauseneck’s issue easily sé isfies all three exceptions. 39. First, his due process issue is likely to recur. His due process claim resides to a large degree in People v Regan __ NY3d__, 2023 NY Slip Op 01353, 2023 WL 2529534 [March 16, 2023] decided approximately four months after Mr. Krauseneck’s sentence. Regan addressed the same issue as raised by Mr. Krauseneck regarding prosecutorial inaction or neglect as a factor in delay. 40. The People attempt to distinguish Regan in their opposition to Mr. Krauseneck’s Habeas Petition opposition to Mr. Krauseneck’s Habeas Petition (Exhibit B at paragraphs 37-41). In its opposition, the prosecution asserts its argument that Mr. Krauseneck’s case is “nearly identical” to People v Decker, 13 NY34d 12, 14 [2009]), and thus, the prosecution claims Regan does not control. 41. This argument is not only factually and legally baseless, but more significantly it demonstrates why the mootness doctrine is inapplicable (see, Matter of Johnson v Pataki, 91 NY2d 214, 222 [1997]). 42. The Court in Regan expressly distinguished the failure to seek available evidence from a case such as Decker in which testimony from key witnesses had not been available until shortly before indictment. The Regan Courtheld that unavailability provides “a colorable explanation” when the witnesses are “cowed by the defendant’s threats” (see Decker, 13 NY3d at 14.” (People v Regan, 18, 2023 WL 2529534, at *5 [Ct App Mar. 16, 2023]). 43. As detailed in Appellant's brief, there is no suggestion in Mr. Krauseneck’s case that any witness, specifically including Dr. Baden, were by any stretch of the term “cowed” or intimidated to not come forward. 44, Thus, Regan, and not Decker, expressly controls. The prosecution's futile attempt to escape the holding of Regan demonstrates in practical terms that the error will be subject to being repeated in this Department without a resolution from by this Court, The prosecution's mistaken minimization of Regan will go unaddressed and will be likely to be repeated in future cases. 45. The issue will typically evade review. Very few defendants will fall within Mr. Krauseneck’s extra-ordinary circumstances including such a protracted delay coupled with his rapid unexpected death after the trial. Thus, without resolution from this Court, the issue of the merits of his claim and the circumstances of his filing a posthumous appeal itself are likely to evade review without a decision from this Court on these two issues. 46. The necessity of review is exacerbated by the dissemination of the lower Court’s decision of the due process Singer issue. The decision was well 10publicized and electronically published across the state.(People v Krauseneck 73 Misc 3d 1227(A) [2021]) Indeed, without some corrective action, other courts may rely on the lower court’s Singer decision (People v Krauseneck 73 Misc 34 1227(A) [2021]). Future litigants, without knowedge that this holding was over- ruled by Regan, may replicate the error of the original decision 47. Finally, the issues regarding the resolution of the Regan claim, along with Mr. Krauseneck’s ability to waive his rights under Mint, easily clear the hurdle of raising “weighty and important issues” not previously explored. ( Matter of Hearst Corp. v. Cline, 50 NY 2.707, 714 [1980] 48. The applicability of the abatement doctrine raises important and weighty policy issues that deserve clarification. Indeed, the issue has commanded national attention as various jurisdictions have revised, modified or continued the doctrine, See Innocence After Death, vol. 60 Case Western Law Review (2010); “Abatement Means What it Says”: The Quiet Recasting of Abatement, 2011 NYU School of Law Annual Survey of American Law 49. In light of these policy issues, several states have either re- considered, modified, or abrogated the abatement doctrine. In Commonwealth v. Hernandez, 481 Mass 582 (2019) the Massachuset Supreme Court discarded the doctrine as outmoded after decades of its use in Massachuset’s courts. W50. Similarly, other states have modified the doctrine. For example, Wisconsin employs an abatement doctrine that allows a deceased defendant to continue an appeal (State v McDonald 144 Wisc 531 (1988). Alaska also has adjusted its abatement doctrine to allow posthumous appellate litigation. (State v Carlin, 249 P3d 752 [Alaska 2011]). Arizona also allows posthumous appeals by criminal defendants State v Reed, 248 Ariz 72, 81 (2020) Conclusion 51. The motion to dismiss the appeal should be denied. As set forth above, the Court has jurisdiction to hear this appeal, the Court of Appeals has not held abatement is never waiveable, Mr. Krauseneck has knowingly waived his right to abatement, the case is not moot, and, even if it were moot, the exceptions to the mootness doctrine apply. 52, It must be emphasized that the matter before this Court does not require it to reach the issue of creating a new abatement doctine. Rather, the issue is limited to whether under the unique circumstances of this case and pursuant to the present doctrine, the Court retains the discretion to allow a review of two disp itive and important issues: the Singer issue and the waivability of the abatement doctrine, There is little question that this Court retains this jurisdictional capacity and should exercise its discretion to allow Mr. 12Krauseneck’s limited appeal. Affirmed under penalty of perjury pursuant to CPLR 2106 this 2 day of June 2023. f \ William T. Easton Easton Thompson Kasperek Shifrin, LLP