A medical examiner's report that Kuby filed with his papers in state Supreme Court on Wednesday shows that Stein's daughter, Samantha Wells, told police she spoke to her 61-year-old mother by telephone around 2 p.m.
That report also said Stein's core body temperature was 86 degrees, 12.6 degrees lower than that of a normal living adult, shortly after she was found. Kuby said this much warmth indicated that the victim had died later than prosecutors said, and his own estimate was about 3:15 p.m. - after Lowery had left the building.
"If there is evidence that Linda Stein was alive and well after defendant Lowery left the premises," Kuby said in court papers, "then Ms. Lowery could not have been the killer."
Kuby asked the court to examine the grand jury record and see whether prosecutors complied with the law requiring them to give to the panel Wells' statement that she spoke to her mother at 2 p.m.
Manhattan district attorney's office spokeswoman Barbara Thompson said the prosecutors know their obligations and will respond to Kuby in court.
Stein, once a co-manager of the Ramones, also was a real estate agent whose deals with clients including Sting, Steven Spielberg and other show business figures earned her the nickname Realtor to the Stars.
She was found face down in a pool of blood inside her $3 million Fifth Avenue apartment around 10:20 p.m. on Oct. 30. She had scalp lacerations and a fractured skull.
Lowery, after a lengthy interrogation that Kuby says was illegal, gave police a statement admitting she beat her employer to death. She is jailed without bail.
Kuby said that after police got Lowery to admit killing Stein, investigators did not look any further and have retrofit the case to incriminate his client.
"The prosecution has moved the time of Ms. Stein's death backward to fit Ms. Lowery's movements," Kuby said.
He said prosecutors appear to be trying "to alter the theory to fit the defendant, rather than finding the defendant who fits the evidence."
