Supreme Court, New York County, August 8, 2023

The Law Offices of Adam Silverstein (Adam Silverstein of counsel) for defendant.

Alvin Bragg, District Attorney (Jonathon Junig of counsel), for the People.

The defendant, Jessie Nowell, was charged with predatory sexual assault against a child pursuant to Penal Law § 130.96 and course of sexual conduct against a child in the first degree pursuant to Penal Law § 130.75 (1) (b). The case proceeded to trial before this court. On August 29, 2022, upon the completion of jury selection and swearing in a jury, the defendant pleaded guilty to one count of course of sexual conduct against a child in the first degree pursuant to Penal Law § 130.75 (1) (b) with a promised sentence of 13 years' state prison followed by 10 years of postrelease supervision and Sex Offender Registration Act (SORA) designation. On the morning of January 9, 2023, the date that the defendant's sentence was to be imposed, the defendant died by apparent suicide. The defendant, through his attorney, has moved to dismiss the defendant's case as abated by his death. The People submitted a response in opposition, and the defendant submitted a reply to the People's response. For the reasons stated herein, the defendant's motion is granted.

This case stems from the defendant's repeated sexual abuse of his girlfriend's eight-year-old daughter. At the end of 2015 into the early months of 2016, the complaining witness' mother became pregnant with the defendant's child. Following the pregnancy announcement, the defendant began secretly and routinely sexually abusing the complaining witness.

Several nights every week, the complainant's mother, the complainant, and the defendant would watch television in the mother's bedroom while lying in bed together. On many nights, after the complainant's mother left the bedroom to make dinner in the kitchen, the defendant would touch the complainant's buttocks and vagina, first through her pajama pants and [*2]eventually graduating to touching the complainant underneath her clothing as well. Over time, the defendant started showing the child pornographic videos and instructing the child to rub his penis with her hands while viewing the videos. On one occasion in 2016, the defendant forced the child to perform oral sex on him. On another occasion, the defendant performed oral sex on the child.{**80 Misc 3d at 691}

The defendant's odd behavior around the child was noticed by the child's aunt, who brought her concerns to the child's mother. The child then disclosed the abuse to her mother. However, instead of reporting the abuse, the child's mother hid the fact that her child had disclosed the abuse to her. The morning after the child had spoken with her mother, the defendant told the child that he knew that she had spoken with her mother and to never mention anything like that to her mother again. The defendant then proposed engagement to the child's mother, and the child's mother accepted.

The defendant ceased abusing the child after she disclosed the abuse to her mother. For three years the child suffered the consequences of the defendant's behavior unsupported, leading her to become withdrawn from her family and spend most of her time in her room alone. Unable to process her feelings, the child used the "Notes" app on her iPhone to detail her abuse by the defendant. Eventually in late September of 2020, the child's aunt addressed the child directly regarding whether she had been sexually abused by the defendant. At this point, the child disclosed the abuse to her aunt, sharing with her the notes she had taken on her phone. Thankfully, the child's aunt took immediate action: she picked up the child from the home she shared with the defendant and her mother and arranged for the child to live with her in Pennsylvania. After the child's mother again refused to act on the information, the child's aunt assisted the child in reporting the incident to the NYPD. After the child was interviewed by detectives, the defendant was placed under arrest.

The defendant was arraigned in New York County Criminal Court on September 20, 2020, and charged with predatory sexual assault against a child pursuant to Penal Law § 130.96, course of sexual conduct against a child in the first degree pursuant to Penal Law § 130.75 (1) (b), and endangering the welfare of a child pursuant to Penal Law § 260.10. The defendant was then indicted on one count of predatory sexual assault against a child pursuant to Penal Law § 130.96 and one count of course of sexual conduct against a child in the first degree pursuant to Penal Law § 130.75 (1) (b). The defendant was arraigned on the indictment in New York County Supreme Court, Part 41, on October 16, 2020.

On August 26, 2022, the case proceeded to trial in front of this court. A jury was selected and empaneled, and the case{**80 Misc 3d at 692} was adjourned to August 29, 2022, for opening statements and the People's case. On the morning of August 29, 2022, prior to opening statements, the defendant pleaded guilty to count 2, course of sexual conduct against a child in the first degree pursuant to Penal Law § 130.75 (1) (b), with the promised sentence of 13 years' state prison followed by 10 years of postrelease supervision and SORA registration. As part of his plea, the defendant allocuted fully to the elements of the crime. The defendant also executed a waiver of his right to appeal. The case was adjourned for sentencing on December 8, 2022.

On December 8, 2022, the defendant failed to appear for sentencing. At that time, [*3]defense counsel informed the People and the court that the defendant had been admitted to a hospital. The case was then adjourned to December 22, 2022, for sentencing.

On December 22, 2022, the defendant did not appear for sentencing. Defense counsel reached out to the court later that day to inform the court that the defendant had died by apparent suicide earlier that morning. The People confirmed that information, and the case was adjourned for the People to obtain a death certificate.

Defense counsel provided the court with a death certificate on January 9, 2023, at which time the defense moved to dismiss the case as abated by the defendant's death. The People filed a motion in opposition, arguing that the distinct circumstances of this case warrant departure from normal procedure as a matter of public policy and out of respect to the victim in this case.

I. History of the Abatement Doctrine in the United States

"[W]hen a convicted defendant dies while his direct appeal as of right is pending, his death abates not only the appeal but also all proceedings had in the prosecution from its inception." (United States v Libous, 858 F3d 64, 66 [2d Cir 2017], citing United States v Wright, 160 F3d 905, 908 [2d Cir 1998]; see also United States v Christopher, 273 F3d 294, 297 [3d Cir 2001] ["(T)he rule followed almost unanimously by the (Federal) Courts of Appeals is that a conviction abates on the death of the accused before his appeal has been decided"].) Following the dismissal of the defendant's case as abated ab initio, "the defendant 'stands as if he never had been indicted or convicted.' " (United States v Logal, 106 F3d 1547, 1552{**80 Misc 3d at 693} [11th Cir 1997], quoting United States v Schumann, 861 F2d 1234, 1237 [11th Cir 1988].)

Abatement claims to satisfy two main principles of law: the punishment principle and the finality principle. In terms of the punishment principle, from a practical standpoint, efforts to punish a guilty defendant as part of a criminal proceeding are entirely defeated by the death of defendant; therefore dismissal due to abatement provides an end to the criminal action as the ability to punish has been thwarted.^[FN1] Turning next to the finality principle, abatement removes criminal convictions that do not have the necessary basis of confidence to support finality, since the appeals process has yet to be, and theoretically cannot be, exhausted. (United States v Moehlenkamp, 557 F2d 126, 128 [7th Cir 1977], citing Griffin v Illinois, 351 US 12, 18 [1956].)

The origin of the doctrine of dismissal by abatement is not completely clear, but scholars have opined that the abatement doctrine arose during medieval times, carried through to English common law and eventually made its way to the American colonies, as a purely clerical [*4]necessity arising from privatized prosecutions before the institution of public prosecutors.^[FN2] In situations where an aggrieved party was responsible for bringing charges against a wrongdoer, no further recompense{**80 Misc 3d at 694} existed once the defendant had died. For example, in an 1848 civil action, the United States Supreme Court held that "all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender." (United States v Daniel, 6 How [47 US] 11, 14 [1848].) The issue of abatement appeared before the Supreme Court again 40 years later, but this time in the form of a criminal case. In List v Pennsylvania (131 US 396 [1888 per curiam]), the Supreme Court dismissed the defendant's prosecution, holding that the death of the defendant abated the case. In Durham v United States (401 US 481, 482 [1971 per curiam]), the Supreme Court, following the majority of the Circuit Courts, briefly adopted the principle of abatement ab initio, or "from the beginning," arguing that the death of the defendant not only abated the appeal of a conviction, but also abated the conviction itself. The Court then instructed that the appeal be dismissed as abated and remanded the case to the trial court for the case to be dismissed. (Id.) This position was quickly reversed five years later by Dove v United States (423 US 325 [1976 per curiam]), where the Court opined that only the petition for certiorari would be dismissed as abated by death and the underlying conviction would remain in place, citing to the fact that the Supreme Court's review of the appeal was discretionary in nature.

For the most part, the Circuit Courts have not adopted the Supreme Court's ruling in Dove and instead continue to abate ab initio, remanding the cases to their courts of origin for dismissal. In applying this practice, most of the Circuit Courts cite the difference between the discretionary review by the Supreme Court once a writ of certiorari has been granted compared to obligatory review by the Circuit Courts. However, in recent years, the Second Circuit has invited Congress to make changes to victims' rights laws to better combat the often unjust outcomes as a result of abatement. (See United States v Libous, 858 F3d 64, 68 [2d Cir 2017] ["We recognize that the consequences of abatement can be unsettling. In certain cases, they can surely be devastating to those affected by the defendant's conduct. The inclination to allow some component of the deceased defendant's punishment to stand is therefore an understandable{**80 Misc 3d at 695} one"]; see also United States v Brooks, 872 F3d 78, 89 [2d Cir 2017].)[*5]

II. Abatement Law in New York State

In New York State, when a defendant dies after a conviction but before sentencing or before perfecting an appeal, courts are instructed to abate any outstanding appeals and remand the case to the trial court for vacatur of the conviction and dismissal of the indictment. (People v Mintz, 20 NY2d 770, 771 [1967]; People v Matteson, 75 NY2d 745 [1989]; People v Griggs, 306 AD2d 122 [1st Dept 2003]; People v Grana, 32 AD3d 1052 [3d Dept 2006].)

The manner of the defendant's death holds no significance when it comes to abatement: the Court of Appeals has specifically held that a defendant's suicide should not be deemed a voluntary abstention from further proceedings and should therefore not "be deemed a waiver or forfeiture of the right to appeal." (Matteson at 747.)

III. National Trends in the Application of Abatement

While abatement as a strict application still exists in some states, New York included, it is not only the minority rule, but an increasingly remote one. "The national trend over the past three decades . . . has been decidedly away from abatement." (Roger L. Michel Jr., Esq., Out with the Old: The Demise of the Abatement Doctrine in Massachusetts, 102 Mass L Rev 1, 10 [2020].) From the 1990s to today, at least 20 states have abandoned the practice of abatement ab initio.^[FN3] In doing away with[*6][*7]abatement, courts across the country have opined that{**80 Misc 3d at 696} the doctrine is outdated because it refers back to a time when{**80 Misc 3d at 697} convictions were considered to be solely punitive, not restorative,{**80 Misc 3d at 698} in nature and found that the practice of abatement fails to account for the impact that the erasure of the criminal action would have on victims of crime. "[T]he emerging approach to abatement, in jurisdictions where the practice has been seriously tested in recent years, has been either to abandon the doctrine altogether, or to transform a needlessly rigid and legally unsupportable rule into a flexible standard attuned to modern conceptions of victims' rights."^[FN4]

This trend supporting the rights of victims is also visible in the legislature: over the last 30 years, 36 states have adopted constitutional amendments incorporating victims' rights.^[FN5] Notably, while New York State has passed several statutes aimed at protecting and aiding victims of crime, New York has not adopted a constitutional amendment incorporating [*8]these rights.^[FN6] Legal scholars have opined that, in the face of these restorative reforms, abatement "stands as an obsolete bulwark that deprives victims even a breath of justice."^[FN7]{**80 Misc 3d at 699}

While likely considered one of the more obscure aspects of criminal law, abatement has been a topic at the forefront of public debate since the early 2000s, thanks to a string of high-profile cases where the application of the abatement doctrine led to seemingly unjust outcomes.

The practice of abatement ab initio seems to have first hit national headlines in 1994, when John Salvi was tried, found guilty, and sentenced to two consecutive life terms of imprisonment following his attacks on two abortion clinics in Brookline, Massachusetts that left two women dead and five others seriously injured. The defendant committed suicide while incarcerated, after having filed an appeal of his conviction. The appellate court dismissed the defendant's appeal and remanded the case to the trial court to dismiss the defendant's conviction and the indictment, because the defendant's appeal had not been, and could not be, resolved.^[FN8] In addition to the impact this abatement had on the victims and their families, the abatement of Salvi's conviction was then used by the Bureau of Alcohol, Tobacco and Firearms, Planned Parenthood Federation of America, Inc., and the National Abortion Federation as an excuse to try and deny Richard J. Seron, a security guard at Preterm Health Services, the $100,000 reward that they had placed on the case. On the day of Salvi's second attack, Seron disregarded directives not to confront Salvi in order to try to save as many staff members and patients as possible. Seron was shot four times in the process and was credited with saving the lives of at least nine others present in the clinic that day.^[FN9]

Abatement again made headlines in 2003 in relation to the Catholic Church sex abuse scandal, when defrocked Roman Catholic Priest John Geoghan was murdered in his prison cell by a fellow inmate while he was serving a sentence on child sexual abuse charges. Geoghan's case was highly publicized as{**80 Misc 3d at 700} it was "the first successful prosecution of a priest many considered to be protected by an epidemic of cover-ups by the Catholic Church."^[FN10] At the time of his death, Geoghan stood convicted of only one count of abuse; there were still hundreds of outstanding [*9]allegations by other survivors.^[FN11] Following Geoghan's death, the Massachusetts appellate court dismissed Geoghan's appeal as abated by death and remanded the case to the trial court to be vacated and dismissed ab initio, restoring Geoghan to the status equivalent to "presumed innocence."^[FN12]

Three years later, in 2006, Enron CEO Kenneth Lay was convicted of multiple counts of fraud, conspiracy and related crimes which led to the collapse of the company and losses of $2 billion to various pension plans. (United States v Lay, 456 F Supp 2d 869, 870 [SD Tex 2006].) While awaiting his sentence, Lay died of a heart attack. (Id. at 870.) Following the doctrine of abatement ab initio, the United States District Court for the Southern District of Texas vacated Lay's conviction and dismissed the indictment. (Id. at 875.)

Abatement next entered the realm of public debate in 2016, when David H. Brooks, the CEO of military supply company DHB Industries, died of a heart attack in prison after being convicted of several securities fraud charges and sentenced to 17 years in prison along with fines and restitution fees totaling over $10 million, not including restitution that had yet to be calculated on Brooks' outstanding charges.^[FN13] At the time of his passing, Brooks had not yet perfected his appeal, thus allowing his estate to move to dismiss the conviction as abated by death.^[FN14] Based on the abatement, the United States Court of Appeals for the Second Circuit would later hold that "when a criminal conviction abates upon the death of a defendant, any restitution ordered as a result of that conviction must also abate." (United States v Brooks, 872 F3d 78, 89 [2d Cir 2017].) However, the Second Circuit noted that this might frustrate Congress' intent to provide restitution to victims of crime, and through its decision invited Congress to amend the language of the victims' compensation laws to account for cases where the conviction is abated by death:

"Congress's purpose may seem especially frustrated by the abatement ab initio doctrine for restitution{**80 Misc 3d at 701} ordered under the MVRA [Mandatory Victims Restitution Act], which requires restitution to be ordered for victims of certain crimes who have suffered as a result of a defendant's conduct. Yet, because the language of the statute requires restitution in cases only where a defendant has been 'convicted of an offense,' we cannot separate restitution from conviction. Without a valid conviction, the statute-based restitution order must be vacated." (Id. at 89-90 [citations omitted].)

One year later in 2017, abatement rocked the sports world in connection to former New England Patriots tight end Aaron Hernandez's death by suicide following his 2015 conviction for the first-degree murder of Odin Lloyd, which was pending appeal at the time of Hernandez's death.^[FN15] At that time, the State of Massachusetts still employed the doctrine of abatement ab [*10]initio, meaning that per Massachusetts law, the court had no option but to dismiss the indictment, conviction, and appeal in their entirety. (Commonwealth v Hernandez, 2017 WL 2115360, *5 [Mass Super Ct, May 9, 2017, No. BRCR201300983].) The Commonwealth appealed, asking the appellate court to instead abolish abatement ab initio from state practice. (Commonwealth's appellate brief in Commonwealth v Hernandez, 481 Mass 582, 118 NE3d 107 [2019], available at 2018 WL 4859904, *6-7.) After years of controversy surrounding the application of the abatement doctrine in the State of Massachusetts, the appellate court agreed, finding that

"the doctrine of abatement ab initio is outdated and no longer consonant with the circumstances of contemporary life, if, in fact, it ever was. Rather, when a defendant dies irrespective of cause, while a direct appeal as of right challenging his conviction is pending, the proper course is to dismiss the appeal as moot and note in the trial court record that the conviction removed the defendant's presumption of innocence, but that the conviction was appealed from and neither affirmed nor reversed because the defendant died." (Commonwealth v Hernandez, 481 Mass 582, 583, 118 NE3d 107, 110 [2019].){**80 Misc 3d at 702}

Just two years later in 2019, disgraced financier and convicted child sex offender Jeffrey Epstein committed suicide while he was in federal custody facing additional child sex trafficking charges. Following his death, Epstein's pending federal case was dismissed as abated by death, but in a unique gesture, the court invited Epstein's victims to provide statements on the record before the matter was formally dismissed "as a measure of respect that we have for the victims' difficult decisions to come forward" and as part of "the court's responsibility . . . to ensure that the victims in this case are treated fairly and with dignity." (Abatement proceeding minutes at 6-7 in United States v Jeffrey Epstein, 19 CR 490 [RMB] [SD NY 2019].)^[FN16]

A mere five months before this court's decision was issued, abatement was litigated in this very courthouse in almost an identical scenario. In People v Ricardo Cruciani (Sup Ct, NY County, Feb. 1, 2023, Rodney, J., indictment No. 1734-18), the defendant, a pain management doctor, was charged with multiple sex crimes in relation to assaults he had perpetrated on six of his female patients. Following a seven-week trial during which all six victims testified, the defendant was found guilty. The defendant died by apparent suicide prior to his sentencing date. Although the court was ultimately forced to dismiss the case as abated by death, the court allowed each of the victims to provide an impact statement on the record. In addition to addressing the lasting trauma that they were forced to endure due to the defendant's sexual abuse, each of the victims spoke to the effect that the dismissal of the case would have on them. (People v Ricardo Cruciani, Sup Ct, NY County, Feb. 1, 2023, Rodney, J., indictment No. 1734-18, slip op at 2-3.) The victims described the practice of abatement as "cruel," "unfair," and revictimizing. (Id.) One victim stated that "she . . . could not 'imagine a scenario where [she was] being told that the last five years of her life and the damage done to [her] health would have been for nothing.' " (Id.)

Absent a change in the law, this case is next to be added to the list of seemingly unjust outcomes. Here, this child complainant, after years of being abused and subsequently emotionally neglected by her own family members, took the brave step of coming forward with [*11]the aid of her aunt and disclosed the sexual abuse she endured at the hands of the defendant.{**80 Misc 3d at 703} She then went on to endure the traumatizing effects of recounting these events not only to police officers, but then to prosecutors and grand jurors, and likely prepared to recount her story yet again to a trial jury before the defendant pleaded guilty on the eve of opening statements. Rewarding this child's bravery by dismissing the criminal case against her abuser, who had already pleaded guilty, equates to a miscarriage of justice that is inconsistent with societal trends relating to victims' rights.

IV. Abating Abatement: Alternatives to Abatement That Preserve Defendants' Rights to Appeal while Taking into Account Victims' Rights

There must be a better way to balance the appellate rights of a defendant with the rights of complainants, especially the rights of survivors of sexual abuse. But how do we abate abatement? Courts and legal scholars have presented several alternatives that would preserve the defendant's appellate rights as well as the rights of the victims. These options include: (1) allowing for a "substitute defendant" who can bring the appeal on the defendant's behalf; (2) allowing courts to hold abatement hearings where the court would be able to weigh the varying factors and make a decision as to whether the case should or should not be abated; (3) making a notation in the trial court record that the defendant's conviction removed his presumption of innocence but the conviction never had an opportunity to be appealed because the defendant died.^[FN17]

A. Substitute Defendants

The first alternative to abatement suggested by scholars and implemented in other jurisdictions is considered the "moderation" approach, wherein a substitute party is permitted to continue and resolve an unperfected appeal.^[FN18] This approach attempts to balance the rights of the victims as well as the rights of a decedent defendant. For the victims, it protects their right to not only the satisfaction of a criminal conviction but also their right to restitution ordered as part of the criminal case. It also protects their interests in any related civil lawsuits that might still be pending against the defendant and{**80 Misc 3d at 704} his estate. In this situation, a family member or legal representative would be allowed to perfect the defendant's appeal as a "substitute defendant," thus preserving the defendant's right to appeal and absolving the court of the need to vacate the conviction and dismiss the indictment.

"This doctrine, currently recognized in [over a dozen] states, affords defendants their right to post-trial review, gives defendants' families the opportunity to appeal the conviction and thus the restitution orders without unjustly forcing them to pay compensation to anyone, and mitigates the problems caused to third parties in subsequent civil proceedings. . . . Substitution also ensures that victims maintain the possibility of receiving [*12]restitution, allows the record to legally reflect the conviction's existence for subsequent civil proceedings (like insurance payments), and mimics what might have happened if the defendant lived to see his appeal through."^[FN19]

However, scholars note that this approach does have its downfalls. As an initial matter, the substitute defendant may not have the same interests as the defendant.^[FN20] For example, were a family member to request permission to perfect the appeal, they would arguably look to the decedent defendant's estate to fund the appeals process, which would run the risk of going against the family member's pecuniary interest as it relates to the division of the estate.^[FN21] Even if a substitute defendant were to perfect an appeal on the defendant's behalf, how can the court be sure, without word from the defendant, that the substitute defendant is following the decedent defendant's wishes?^[FN22] Finally, the result of the appeal would be mostly academic in nature: "No judgment could be effected (barring fines or restitution) if the appeal were upheld. Thus, except in those cases that involve fines or restitution, there is no practical reason to have an appeal anyway."^[FN23]{**80 Misc 3d at 705}

B. Abatement Hearings

A second alternative to the abatement doctrine would be to permit the trial court to hold an abatement hearing. In Dying to Get Away with It: How the Abatement Doctrine Thwarts Justice—and What Should Be Done Instead (75 Fordham L Rev 2193, 2223-2229 [2007]), Timothy A. Razel proposes that the trial court be permitted to conduct a hearing to determine whether the case against the defendant should be abated ab initio or whether the conviction should be allowed to stand. (Id. at 2223.) Razel opines that courts should consider and balance four main factors when making their determination: (1) restitution (and this court would add ongoing civil litigation to this consideration); (2) the heinousness of the crime; (3) the involvement of victims; and (4) the effect on the decedent's family, heirs, and next of kin. (Id. at 2224.) Upon hearing evidence and balancing the abovementioned factors, the court would then arrive at a determination as to whether the case should be abated ab initio or to preserve the conviction while dismissing any undecided appeals. (Id. at 2226-2227.) Should the court preserve the conviction, a substitute defendant could then appeal the trial court's decision, as outlined supra. (Id. at 2227.)

Razel goes on to explain that abatement hearings would offer courts the flexibility to take into consideration the unique circumstances of each case in order to come to the fairest result in each situation, efficiently resolve the case upon the defendant's death, and provide finality to [*13]the case. Alternatively, they allow a significant degree of judicial discretion, and might create a conflict between the attorney's interests and the defendant's wishes (similar to the substitute defendant proposal), and additional strain on the court system (as opposed to a blanket abatement rule). (Id. at 2227-2228.)

C. "A Mean Between the Two Extremes": Notations in the Court Record

A minority of states, namely Alabama, Massachusetts and Louisiana, employ a third alternative to abatement in which the court dismisses any pending appeals, allowing the underlying conviction to stand with a notation in the record that the defendant did not have an opportunity to appeal the conviction due to his death. In Wheat v State (907 So 2d 461 [Ala 2005]), a death row defendant appealed his conviction for five counts of capital murder and later passed away while the case was pending appeal. The appellate court initially abated the defendant's case ab initio, but the state petitioned the Supreme{**80 Misc 3d at 706} Court of Alabama for review. Upon review, the Supreme Court held:

"[T]he Court of Criminal Appeals shall instruct the trial court to place in the record a notation stating that the fact of the defendant's conviction removed the presumption of the defendant's innocence, but that the conviction was appealed and it was neither affirmed nor reversed on appeal because the defendant died while the appeal of the conviction was pending and the appeal was dismissed." (Id. at 464.)

Understanding that these alternatives are, by no means, perfect solutions to the problems posed by abatement ab initio, at the very least they would provide courts with a mechanism to implement a more just outcome that balances the defendant's right to appeal and the victim's rights based on a review of the facts and circumstances of each case.

V. Victim Impact Statement

There is one final, important matter to address: the victim impact statement. Because there is no other source of relief available to the complaining witness in this case, prior to the court's decision on this motion, this court inquired as to whether the victim or a representative would like to provide a statement on the record. This complainant understandably chose not to, which is her right, one of the few she seems to retain at this point in the case.

Absent a change in the legislation or an alternative ruling from a higher court, this court is bound by the existing case law surrounding abatement. For these reasons, this court is required to dismiss this case as abated by death. However, the court will dismiss the matter pursuant to CPL 210.20 (1) (h), on the grounds that there "exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged," therefore providing the People an opportunity to appeal this matter to a higher court.