People v Krauseneck

[*1] People v Krauseneck 2021 NY Slip Op 51137(U) Decided on December 2, 2021 Supreme Court, Monroe County Schiano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 2, 2021
Supreme Court, Monroe County

The People of the State of New York,

against

James Krauseneck, Defendant.



Ind. No. 2019-0705



For the People:

Patrick Gallagher, Esq.

Assistant District Attorney

Derek Harnsberger, Esq.

Assistant District Attorney

SANDRA DOORLEY, ESQ.

Monroe County District Attorney

47 S. Fitzhugh Street

Rochester, New York 14614

For Defendant:

Bond Schoeneck & King, PLLC

By: Michael R. Wolford, Esq.

350 Linden Oaks

Rochester, New York 14625

Easton Thompson Kasperek & Shiffrin, LLP

By: William T. Easton, Esq.

16 West Main Street

Rochester, New York 14614
Charles A. Schiano Jr., J.

On February 19, 1982, twenty-nine year old Cathleen Krauseneck was murdered as she lay sleeping in her bed in her home at 33 Del Rio Drive in Brighton, New York. She was found by her husband, James Krauseneck, when he returned home from work just before 5:00 p.m., with a long-handled ax embedded in her head. Their three and half year old daughter, Sara, had been in house all day, but was unharmed. James Krauseneck told police he left for work that [*2]morning at 6:30 a.m., while his wife and daughter were still asleep. Thirty-seven years later, on November 1, 2019, a Grand Jury indicted James Krauseneck ("defendant") on one count of Murder in the Second Degree under Section 125.25(1) of the Penal Law of the State of New York.

Procedural History

On February 28, 2020, defendant served and filed a motion to dismiss the indictment contending there has been an unconstitutional delay in commencing this prosecution requiring the dismissal of this action. The People responded on November 18, 2020, by serving opposition to the motion. Defendant replied on December 4, 2020 and thereafter supplemented his motion with a further submission on January 13, 2021. The Court granted a hearing on the issue pursuant to People v Singer, 44 NY2d 24 [1975]. Defendant filed a Trial Memorandum of Law on June 21, 2021.

A hearing was held on June 22nd through June 25th, and continued September 22nd of 2021. The People presented 11 witness and Defendant presented four. Both parties placed multiple exhibits into evidence. Following the hearing, each party submitted post-hearing briefs.

Arguments of the Parties

Defendant primarily argues that the Court should grant his motion to dismiss because the prosecution did not meet its burden to establish good cause for the lengthy pre-indictment delay (Defendant's Post-Hearing Brief ["Def."], p. 13 et seq.). According to defendant, "the prosecution here did essentially nothing from 1986 until 2016 (Def. Brief, p. 15). Defendant contends "that there was no new evidence — particularly DNA evidence or some new scientific development — that allowed the prosecution to 'restart' the Krauseneck investigation . . . . this is not a case where new evidence or facts suddenly changed the case and revived prosecutorial efforts . . . . the prosecution has provided no evidence that was not available 37 years ago" (Def. 17,18).

Defendant also argues the 37-year delay significantly prejudiced his ability to defend himself against this charge because of the passing away of potential witnesses on his behalf. Specifically, defendant points out the original pathologist, Deputy Monroe County Medical Examiner Dr. Evelyn Lewis, passed away in 2018, and two of defendant's co-workers at the Eastman Kodak company have passed away.

Defendant argues Dr. Lewis' testimony "would completely undercut" Dr. Baden's reliance on her autopsy findings as to stomach contents (Def. Brief, p. 9). Defendant cites police interviews with his now deceased Eastman Kodak Company co-workers stating that "Jim Krauseneck acted perfectly normal during the day on February 19, 1982, when they met with him" (Def. Brief, p. 9). Defendant also points out that Brighton Police Department ("BPD") Sergeant Edward O'Grodnik, who passed away in 2011, could have testified to his observation, as found in his police report, "that the electric blanket over Cathleen Krauseneck was in the off position" (id). Defendant contends this information is important in the time of death analysis (id.).

Defendant cites the death of Investigator Thomas Schrader, who passed away in 2005. Defendant contends he could have shed light on the BPD investigation of Edward Laraby, a person defendant asserts was a likely suspect and should have been more thoroughly [*3]investigated. Defendant also cites the death of former BPD Chief Eugene Shaw, the BPD Chief at the time of the murder and who met with Investigator Schrader after Schrader's attempt to interview Laraby.

Defendant also cites the death of Laraby himself and of Dr. David Barry, whom defendant alleges administered chemical castration drugs to Laraby as a condition of Laraby's probation at the time of the murder.

The People contend that despite a vigorous and thorough investigation, prosecutors "harbored sincere concern that there was a lack of quality physical evidence connecting defendant to the crime (People's Post Hearing Brief ["Ppl"], p. 12). The People argue that the prosecution did in fact exercise good faith in their decision to defer prosecution. The People argue the Court should evaluate the decision to defer prosecution based on the information available when the decision was made, that "investigators in the 1980s had absolutely no reason to believe that deferring the prosecution and keeping the case open as a cold case would not result in discovery of new evidence."

The People disagree that the current prosecution could have been made in 1982 or 1983. The forensic testing conducted by the FBI, while not producing a sort of "smoking gun" type break -through, did help to evaluate defendant's claim that a third party committed the crime by not bringing forth any evidence of a third party in the home. "In a circumstantial case such as this, the absence of any evidence demonstrating the involvement of a third party perpetrator is compelling evidence against defendant's claims of innocence" (Ppl., p. 18).

The People also argue that defendant has not suffered prejudice such that he cannot present his defense. The People state that at trial they will, consistent with their conduct at the Singer hearing, consent to otherwise inadmissible hearsay statements of those witness cited by defendant as deceased and therefore unavailable.

Finally, the People contend that while 37 years have passed, this is not a case where defendant was unaware of the investigation or the prosecution's interest in him as a suspect.

The Singer Hearing

The People presented the testimony of seven current and former BPD officers including officers who worked on the initial investigation and former Chiefs of Police Thomas Voelkl, 1993-2010, and Mark Henderson, 2010-2019. The People also called to testify the Assistant District Attorney ("ADA") assigned to the case in 1982, Douglas Rowe, former District Attorney ("DA") Howard Relin, 1983-2003, and current District Attorney Sandra Doorley.

The People detailed their intense investigation beginning with their arrival at the Krauseneck home just after 5:00 p.m. Investigators observed that a window of a door leading from the garage to the interior of the home had been broken, apparently using a two foot maul found nearby. The main floor showed signs of a burglary, with a silver tea set on the floor and contents of a woman's purse strewn about.

Cathleen Krausenck's body was found in the couple's upstairs bedroom in the bed under the covers. Approximately $43 in cash was observed in plain view on a dresser that could be seen from the hallway outside the bedroom. Investigators did not observe any ransacking or signs of a burglary upstairs.

In the immediate aftermath of the murder and following, BPD interviewed the defendant, neighbors, co-workers of defendant at Eastman Kodak Company, friends and family members of [*4]Cathleen and defendant. They collected phone records. They traveled to Lynchburg, Virginia, Fort Collins, Colorado, and the St. Clair area of Michigan, conducted background interveiws and consulted local law enforcement in those areas. They collected hair and saliva samples from defendant and Sara, and investigated all tips received and persons coming forward claiming to have information.

The autopsy of Catherine Krauseneck was completed by Monroe County Deputy Medical Examiner ("ME") Dr. Evelyn Lewis. Dr. Lewis concluded that Cathleen Krauseneck was murdered in her sleep by one blow of the ax to her head. Although not in her official report, Dr. Lewis told investigators she estimated the time of death, based on body temperature, to be somewhere between 4:30 a.m. and 7:30 a.m.

In addition to other investigative steps, police traveled back to St. Clair, Michigan in 1984, and again in 1985. The latter trip for the purpose of obtaining an interview with Sara Krauseneck.

In 1986, then DA Howard Relin consulted the Monroe County Medical Examiner Dr. Nicolas Forbes. Dr. Forbes estimated, depending on the rate the body cooled, that Catherine Krauseneck died between 5:55 a.m. and 8:55 a.m, and cautioned that there was no precise way to determine the time of death. By this time, James Krauseneck was the only suspect in an entirely circumstantial case. After conferring and analyzing the available evidence, BPD and the District Attorney's office determined that his guilt could not be proven beyond a reasonable doubt due to a lack of physical evidence and questions about the time of death. The case became essentially a cold case.

The matter was reviewed periodically, notably in 1988 as BPD sought to educate younger officers in the case details as officers working the case originally began to retire. The file was also updated as BPD learned new information, such as when defendant changed residences or got married. Leads that occasionally came in were investigated, but none resulted in useful information.

In 2010, a 24 year Brighton Police Department veteran, Mark Henderson, became Chief of the Brighton Police Department. Chief Henderson, like his predecessor, also kept the Krauseneck investigation file in his office.

In 2014, BPD was notified that Edward Laraby had confessed to the murder. His confession was reviewed by BPD and District Attorney Sandra Doorley. Each concluded that Laraby fabricated the confession.

In 2015, the new Special Agent in Charge of the Federal Bureau of Investigation's ("FBI") Buffalo field office announced a new Cold Case Working Group and Chief Henderson conceived the idea of presenting this case to the group. In 2016, Chief Henderson made his presentation with the result that the FBI agreed to dedicate federal resources in a reevaluation of the case. This led to, among other things, a digitization of the case file in a searchable database, and an offer to reevaluate the physical evidence using the latest techniques, including DNA and other analysis, at the FBI laboratory in Quantico, Virginia. Chief Henderson assigned Investigator Mark Liberatore to the investigative team and to interface with the FBI. In addition, Chief Henderson apprised the Monroe County District Attorney. District Attorney Doorley agreed to assist in the reignited investigation and assigned two Investigators from her office to the investigative team. DA Doorley personally participated in selecting evidence to be sent to [*5]Quantico. According to DA Doorley:

We were looking to see if there was an outside contributor, if we could identify a suspect. We just needed to get to the truth, so we were trying to just test as many items as possible to see what we could learn, and then, you know, we would direct the investigation in that direction.

(Transcript 2, p. 16, lns. 3-8).

In addition to a thorough review of the case file and evidence, BPD determined to re-interview defendant and his now adult daughter, Sara, traveling to Washington State and Texas to do so. In addition, document subpoenas were issued, other witnesses interviews conducted, and media stories placed in an attempt to generate leads. By mid 2017, FBI preliminary test results were received. During this time, District Attorney Doorley consulted the former ME in Monroe County, Dr. Scott LaPoint (Transcript 2, p. 18-19). Dr. Lapoint testified he told DA Doorley that time of death would be a range that extended to the early morning hours but that "the upper end of that time range extended into the later morning hours, when he [defendant] would have been gone" (Transcript 2, p. 92, lns. 3-5).

Following this, the investigation turned to Dr. Michael Baden, a prominent expert forensic pathologist and former New York City Medical Examiner and former Chief Forensic Pathologist for the New York State Police. Dr. Baden provided an opinion as to a time of death before 6:30 a.m. According to Defendant's expert, Dr. Carolyn Revercomb, Dr. Baden's opinion was not based on any new developments in the field of pathology after 1982.

A mass shooting event in early 2018 forced the case down in the FBI priority list, which delayed work on the case. By August 2018, it was determined the Monroe County Crime Laboratory ("MCCL") could complete testing and the evidence was retrieved and submitted to MCCL.

The Monroe County Crime Laboratory completed its review in August of 2018. In early 2019, BPD asked the District Attorney's Office to present the case to a grand jury. In May of 2019, DA Doorley assigned the case to ADA William Gargan for presentation to a grand jury.

Analysis

A motion to determine whether the People have unduly delayed prosecuting a case for a tactical advantage in violation of defendant's rights to due process is commonly referred to as a "Singer" motion after the defendant in the Court of Appeals decision in People v Singer, 44 NY2d 241 (1975). The Court of Appeals in Singer held that "unreasonable delay in prosecuting a defendant constitutes a denial of due process of law" but that "a determination made in good faith to defer commencement of prosecution for further investigation or for other sufficient reason, will not deprive the defendant of due process of law even though the delay may cause some prejudice to the defendant" (Singer, 44 NY2d at 253-254).

It is well settled that in determining whether there has been an unconstitutional delay in commencing a prosecution, the Court should consider what are commonly referred to as the Taronovich factors, after the defendant in People v Taranovich, 37 NY2d 442 (1975).[FN1] The [*6]factors are: "(1) the extent of the delay, (2) the reason for the delay, (3) the nature of the underlying charge, (4) whether or not there has been an extended period of pretrial incarceration, and (5) whether or not there is an indication that the defense has been impaired by reason of the delay" (People v Taranovich, 37 NY2d 442, 445 [1975]); People v Decker, 13 NY3d 12, 14-15 [2009], People v Pulvino, 115 AD3d 1220, 1220 [4th Dept 2014]). This requires the Court to "engage in a sensitive weighing process of the diversified factors present in the particular case" (Taranovich, 37 NY2d at 445). "[N]o one factor [is] dispositive of a violation, and [there are] no formalistic precepts by which a deprivation of the right can be assessed" (People v Johnson, 193 AD3d 1429 [4th Dept 2021][quoting People v Romeo, 12 NY3d 51, 55 [2009][quoting Doggett v United States, 505 US 647, 652 (1992)], cert denied 585 US 817.

Extent of Delay

"The first factor, the extent of the delay, is of critical importance because 'all other factors being equal, the greater the delay the more probable it is that the accused will be harmed thereby" (Taranovich, 37 NY2d at 445). All agree that delay in this case is substantial. Nevertheless, "[t]here is no specific temporal period by which a delay may be evaluated or considered 'presumptively prejudicial'" and the Court of Appeals "has steadfastly refused to set forth a per se period beyond which a criminal prosecution may not be pursued" (People v Taranovich, 37 NY2d at 445; People v Romeo, 12 NY3d at 56). A thirty-three year pre-indictment delay (People v Chatt, 77 AD3d 1285 [4th 2010], lv denied 17 NY3d 793 [2011], a twenty-one year delay (People v Pilmar, 193 AD3d 467 [1st Dept 2021]; a nineteen year pre-indictment delay (People v Rogers, 103 AD3d 1150 [4th Dept 2013], lv denied 21 NY3d 946, a seventeen year pre-indictment delay (People v Gaston, 104 AD3d 1206 [4th Dept 2013], lv denied 22 NY3d 1156 [2014], a sixteen year pre-indictment delay (People v Hayes, 39 AD3d 1173 [4th Dept 2007], lv denied 9 NY3d 923 [2007], a fifteen year pre-indictment delay (People v Decker, 13 NY3d 12), and a 12 year pre-indictment delay (People v Lewis, __ AD3d __, 2021 NY App Div LEXIS 6564 [4th Dept., Nov. 19, 2021) were all found not to be a violation of due process in homicide prosecutions, and certainly not presumptively prejudicial or a per se violation of due process.

"Where the delay is lengthy, an examination of the other factors is triggered, and the length of delay becomes one factor in that inquiry (People v Romeo, 12 NY3d at 56).

Reason for Delay

Where there has been extended delay, as is the case here, it is the People's burden to establish good cause for the delay (People v Singer, 44 NY2d at 254).

As noted, it is well established that "a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant" (People v Vernace, 96 NY2d 886). In People v Lesiuk, the Court of Appeals spoke directly to the good faith standard referring to its previous decision in Singer.

We recognize that there is a need to investigate to discover the offender, to eliminate unfounded charges, and to gather sufficient evidence prior to the commencement of a prosecution. Thus, we stated that "a determination made in good faith to defer [*7]commencement of the prosecution for further investigation or for other sufficient reasons, will not deprive the defendant of due process of law even though the delay may cause some prejudice to the defense.

(People v Lesiuk, 81 NY2d 485, 490 [1993][quoting People v Singer, 44 NY2d, at 254).

The People established that prior to Chief Henderson's reinvigoration of the investigation which led to the present indictment, the opinion of the District Attorney's Office and the Brighton Police Department was that there was not enough evidence to indict defendant. Assistant District Attorney Douglas Rowe, who was in charge of the case at the Monroe County District Attorney's office, until he left the office in 1984, testified that there was insufficient evidence to bring charges. Former Brighton Police Chief Thomas Voelkl, who worked on the initial investigation and later became Chief of Police in 1993 and serving to 2010, testified that "[t]here was no point in time where we had sufficient evidence to pursue a grand jury indictment," including during the time when Eugene Shaw [FN2] was Chief of Police (Transcript 1, pp. 204-205)[FN3] . Former District Attorney Relin, the DA in 1986 was clear: "There were discussions relating to the case, and we had made the determination as a result of some problems with the case, namely the time of death, that at that point we did not have enough evidence to present the case to a grand jury" (Transcript 1, p. 264, lns. 12-16). According to DA Relin, time of death "was the critical part of the case that would have been absolutely necessary in order to present it to the grand jury" (Transcript 1, p. 264, ln. 25, 265, lns. 1-2).

As noted, what troubled the prosecution in this circumstantial case then were questions regarding the time of death and a lack of physical evidence linking defendant directly to the murder. The People here showed that they had the opinion of two Monroe County Medical Examiners, each giving a different range of time when death could have occurred, including a time after defendant said he left the house. In these circumstances, it was within the prosecution's discretion to defer arrest or indictment with the hope of further evidence coming to light. Moreover, the delay here "does not appear to have been a deliberate attempt by the prosecution to hamper the [defendant] in the preparation of his defense and, indeed, no such claim is here made" (People v Taranovich, 37 NY2d at 446).

This case is not unlike a case recently decided in the Appellate Division, People v Pilmar, 193 AD3d 467 [1st Dept 2021). In that case, Howard Pilmar was murdered in the offices of his company, King Office Supply, Inc., in 1996 (People v Pilmar and Wald, Sup Ct, New York County, June 2018, Hong, J., Ind. No. 2319/2017, 1. Over 21 years later, a grand jury indicted his wife Roslyn Pilmar [FN4] (id.) The defense brought a motion to dismiss contending the prosecution unconstitutionally delayed the prosecution. The trial court denied the motion. On [*8]appeal, the Appellate Division held that

The court properly denied defendant's motion to dismiss the indictment on the ground of preindictment delay (see People v Singer, 44 NY2d 241 [1978]; People v Taranovich, 37 NY2d 442, 445 [1975]). The record supports the court's findings regarding the applicable factors (see id.). Although the 21-year delay was significant, it was not due to bad faith. Instead, it was the result of the prosecutor's efforts to acquire additional evidence in order to prove defendant's guilt beyond a reasonable doubt. The investigative delays were satisfactorily explained and were permissible exercises of prosecutorial discretion (See People v Decker, 13 NY3d 12, 14 [2009]).

(People v Pilmar, 193 AD3d at 467).

The Court finds that the People have established that in 1986 a good faith decision was made to defer prosecution of defendant for lack of evidence and that this decision was not made to gain a tactical advantage over defendant (People v Chatt, 77 AD3d 1285, 1285 [4th Dept 2010]["Although that delay [of 33 years] is substantial and may have caused some degree of prejudice to defendant, the People satisfied their burden of demonstrating that they made a good faith determination not to proceed with the prosecution in [1974] due to, what was at the time, insufficient evidence"]). After 1986, this was a cold case, where investigative leads had been exhausted and no new information came to light - excepting certain leads that came to light that were investigated and found not to be significant, until the prospect of using new investigative tools revived it.

Defendant contends the Court cannot find the prosecution acted in good faith because "the prosecution has provided no evidence that was not available 37 years ago" (Def., 18). The Court does not agree. The burden on the prosecution is to show that the decision to defer was, at the time, made in good faith. In People v Chatt, the Fourth Department reiterated the standard as set forth by the Court of Appeals in Decker, that the burden relates to circumstances at the time of deferral: "the People satisfied their burden of demonstrating that they made a good faith determination not to proceed with the prosecution in [1974] due to, what was at the time, insufficient evidence" (People v Chatt, 77 AD3d at 1285 [emphasis supplied]; Decker, 13 NY3d at 16).

It is also not the case that "new" facts previously unknown must be discovered. For instance, the prosecution in Decker proceeded against the defendant for a 1987 murder fifteen years later "using the same evidence that was available in 1987" (People v Decker, 13 NY3d at 14). That case proceeded when the witnesses overcame both their addictions to drugs and fear of testifying (id.). Here, Dr. Baden interpreted the known facts in a different way than the County Medical Examiners who looked at the same evidence. Crucially, the People showed that the prosecution did not have an opinion in 1982, or 1986, of a forensic pathologist placing the time of death prior to, and entirely within, the time when defendant told police he was at home. Dr. Baden's opinion in this regard is new to the case. It is noted that Dr. Baden's opinion relies not just on body temperature to determine a time of death, but also considers stomach contents and rigor mortis and uses a slower rate of cooling than the "rule of thumb" body temperature cooling [*9]rate that the previous opinions provided by Monroe County Medical Examiners relied upon.[FN5] In addition, as opposed to 1986 or earlier, the People now had a DNA analysis of the evidence supporting the People's contention that a third party was not present. Under these circumstances, it was entirely reasonable for the District Attorney to determine that the case should now be presented to a grand jury.

Defendant also asserts that the prosecution could have "sought new medical testimony back in the 1980's but chose not to do so . . . it did not follow up on obtaining a medical expert until it hired Dr. Baden thirty years later " (Def., p. 20).

Here, the People had the opinion of two different County Medical Examiners and qualified forensic pathologists who told them determining time of death was uncertain. Each ME gave them differing time periods for when the death may have occurred. The prosecution was entitled to rely upon this information. Defendant has cited no authority, and the Court finds none, for the proposition that prosecution had a duty to consult an independent forensic pathologist in 1986 to controvert what their own ME's were telling them. The prosecution had no way of knowing in 1986 that a different forensic pathologist looking at the same data as Dr. Lewis and Dr. Forbes years later would interpret it in a way that establishes the time of death at a time when defendant said he was at home.

Impairment of the Defense

Defendant argues that the unavailability of certain identified witnesses have prejudiced his ability to defend himself. Where there has been a long delay, but where "there is no indication that the decision was made in anything other than good faith," the law permits "some degree of prejudice to defendant" as long as the defense was not "significantly impaired" (People v Rogers, 103 AD3d 1150, 1150 [4th Dept 2013][citing People v Decker, 13 NY3d at 15]). The Court finds that while defendant may be prejudiced to some degree, he has not shown he is significantly impaired by the unavailability of these witnesses.

Defendant cites the unavailability of Investigator Schrader and Sergeant O'Grodnik and Chief Shaw of the Brighton Police Department. Defendant cites Investigator Schrader primarily because he spoke to Edward Laraby, got no information and apparently did no further follow up. The Court finds little prejudice here as BPD obviously dismissed Laraby as possible suspect and there is no evidence to suggest that Investigator Schrader would have been of assistance to defendant in establishing Laraby as a suspect, or in some fashion providing evidence to exonerate defendant. For the same reason the unavailability of Chief Shaw engenders little prejudice as, besides being Chief and involved in the investigation, his main contribution to the defense would seem to relate to why Investigator Schrader did no further follow up on Laraby.

Sergeant Edward O'Grodnik could have testified that he found the electric blanket switch in the "off" position, however, the People have agreed to stipulate to this information, which significantly reduces any prejudice toward defendant. There was no evidence that Sergeant O'Grodnik's testimony would otherwise have been helpful to defendant.

These police witnesses were all involved in the initial investigation and their unavailability may engender some prejudice to defendant. "On the other hand, a long delay [and in this case the unavailability of primary police investigators] may also work against the prosecution as the passage of time can make it more difficult for the People to meet their burden" (People v Decker, 13 NY3d at 15).

Defendant also cites the unavailability of two of his co-workers at Eastman Kodak. These witness, according to defendant, would have testified that defendant was at work and acted normally on February 19, 1982, when they interacted with him. This information is in police reports of interviews with them. The People have agreed to stipulate that these witnesses would have so testified, and the Court finds their absence does not significantly impair the defense.

Nor does the Court find significant prejudice because Dr. Lewis is unavailable. The Court is dubious of the defendant's claim that the unavailability of the Deputy Medical Examiner who performed the autopsy, and who could have given to the jury a graphic and detailed account of the hideous way in which Cathleen Krauseneck died, is prejudicial to the defendant. Moreover, her findings are documented in her official autopsy report and the People have agreed to stipulate it into evidence, including her findings as to stomach contents. Further, the People have agreed to stipulate to her opinion, not documented in the autopsy report, as to time of death.

Defendant contends that these stipulations are a pale substitute for live testimony and the Court acknowledges that in general live testimony may be preferred over a stipulation to testimony. Although, it is worth noting that Dr. Lewis' opinions, as well as the information to come in by stipulation from defendant's Eastman Kodak coworkers and police investigators, to the extent they are helpful to defendant, have no possibility of impeachment by cross-examination, which is a counter to any diminishment of its impact as only a "pale substitute" for live testimony.

Finally, the Court finds no prejudice that Edward Laraby is unavailable to testify for defendant. The evidence at the hearing showed that in 2014 Laraby was aware that his illness was terminal and was making confessions to anyone in law enforcement that would listen in order to gain concessions of a burial outside the prison and other concessions, such as a tombstone. BPD investigators were told by the New York State Police that Laraby was even confessing to murdering persons that were known to still be living. Although, he made at least one legitimate confession, in opinion of authorities, in the case of Stephanie Kupchynsky. It is sheer speculation, and perhaps fantasy, that had this case been brought in 1982 or 1986, or at anytime before Laraby became terminally ill, that he would have appeared in Court and confessed to murdering Catherine Krauseneck or provided any testimony incriminating himself. Similarly, as to Dr. Barry, there was little showing of prejudice. Any records relating to Laraby's parole conditions or treatment records by Dr. Barry would be subject to subpoena.

Finally, should he be so advised, the defendant can present Laraby's alleged confession in his defense. As noted, the prosecution will stipulate to such evidence entering the record at trial, overcoming any evidentiary hurdles.

Accordingly, the Court finds defendant has not demonstrated significant impairment of his ability to defend himself as a result of the delay.

Seriousness of the Charges and Pre-Trial Incarceration

The third and fourth factors are perhaps the least complicated in this case. As was the case in Decker:

The underlying charge here is murder, unarguably a very serious offense. In addition, defendant remained at liberty on the murder charge until after his indictment and, since he was not arrested during the initial investigation, was not subject to the anguish (see Singer, 44 NY2d at 253, no 2) or public opprobrium often surrounding pending charges (see Vernace, 96 NY2d at 888).

(Decker, 13 NY3d at 15). While the defendant in Decker did suffer a period of incarceration after the indictment, the defendant here has not. He posted bail, in accordance with a prior agreement, immediately following arraignment.

In sum, although the 37 year delay was extraordinary and favors defendant, "the nature of the charge is serious and defendant remained at liberty [even after] he was indicted. Moreover, the People met their burden of establishing a good-faith basis for the delay, that is an "'acceptable excuse or justification' for the delay" (People v Lewis, __ AD3d at __, 2021 NY App Div LEXIS 6564 at *2 [quoting People v McFadden 148 AD3d 1769, 1771 (4th Dept 2017)]). "In particular, they established that there was insufficient evidence to charge defendant shortly after the crime occurred" (People v Gaston, 104 AD3d 1206, 1206 [4th Dept 2013][citations omitted]; People v Chatt, 77 AD3d at 1285; People v Garcia, 192 AD3d 1462 [4th Dept 2021). The People were able to proceed when an expert forensic pathologist was consulted who was able to reinterpret the autopsy findings to give an opinion that Cathleen Krauseneck died before her husband left for work on February 19, 1982; and, DNA analysis failed to show the presence of a third party. While defendant suffered some prejudice by the delay, he was not deprived of due process of law (People v Decker, 13 NY3d at 14; People v Lewis, __ AD3d at __, 2021 NY App Div LEXIS 6564 at *2).

It is hereby

ORDERED that defendant's motion to dismiss is denied.

The above constitutes the Decision and Order of the Court.

Dated: December 2, 2021

Rochester, New York

HONORABLE CHARLES A. SCHIANO, JR.

Supreme Court Justice Footnotes

Footnote 1:The claim in Taronovich concerned defendant's right to a speedy trial, however, "the factors utilized to determine if a defendant's rights have been abridged are the same whether the right asserted is a speedy trial right or the due process right to prompt prosecution (People v Vernace, 96 NY2d 886, 887 [2001]).

Footnote 2:Chief Voelkl's predecessor at BPD and the Chief when the murder occurred.

Footnote 3:"Transcript 1 refers to the continuously paginated transcript of the proceedings over June 22 through June 25, 2021. Subsequent references to Transcript 2 refer to the transcript of the continuation of the proceedings on September 22, 2021.

Footnote 4:Roslyn Pilmar's brother Evan Wald was also indicted for his part in the murder.

Footnote 5:Dr. Baden's opinion as provided in a letter dated October 15, 2019, to the Monroe County District Attorney's office was submitted into evidence at Defendant's Exhibit CC. Dr. Carolyn Revercomb, the Medical Examiner in Onondaga County, New York, testified on behalf of defendant at the hearing and stated that the rule of thumb is that bodies generally cool at 1.5° per hour. A notation in the file by DA Howard Relin of a of conversation with Monroe County ME Dr. Forbes indicates Dr. Forbes said the rule of the thumb was the body cools 1° to 1.25° per hour (People's Exhibit 4). Dr. Baden's letter indicates he used 1° per hour because the victim was fully clothed and under a comforter and electric blanket.