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AG intervenes in case to address constitutional concerns
ALBANY —The case against a local school teacher accused of raping a student in her care could have a wide-ranging impact on how a Delmar-based state agency, the Justice Center for the Protection of Persons with Special Needs, investigates and prosecutes crimes against people in state sanctioned, certified or licensed facilities.
In court papers, Michael Pollok, the attorney for Marina Viviani, a former teacher at the LaSalle School, located at 391 Western Ave., cites a dissenting opinion by the state’s highest court that brings into question the Justice Center’s ability to bring charges in counties where that responsibility is already given to an elected DA.
That constitutional issue was raised by the office of Attorney General Eric Schneiderman in a letter to Judge Thomas Breslin. Senior Assistant Solicitor General Andrew Amend informed the judge the AG would be intervening in the Viviani case to address constitutional concerns since it first brought them up in front of the Court of Appeals earlier this year.
Click to read the AG’s letter to Breslin
The dissenting opinion in the People versus Davidson that set the stage was written by Court of Appeals Judge Jenny Rivera, who questioned the constitutionality of the Justice Center’s legal ability to bring charges without the DA’s knowledge and/or consent and whether or not the DA is ultimately responsible for a case’s disposition.
The Justice Center
The Justice Center, created by executive order by Gov. Andrew Cuomo and enacted by the legislature in 2012, alleges the 30-year-old Viviani had sexual intercourse with one of her students at the LaSalle School, a facility that is licensed by the state Office of Children and Family Services and that caters to troubled youth.
The legislation, among other things, creates a special prosecutor and inspector general to investigate and prosecute allegations of abuse and neglect against the some 1 million people in state operated, licensed or certified facilities.
The legislation directs all complaints – of which there are tens of thousands a year – in such facilities be directed to the Justice Center rather than local law enforcement agencies.
It’s headquartered at 161 Delaware Ave. in Delmar but it has “concurrent jurisdiction,” according to the legislation, with district attorneys in each of the state’s 62 counties. That means it can act on its own without any involvement from the DA’s offices.
That’s where constitutional issues have arisen and it gets a little sticky.
“The Justice Center is in regular contact with district attorneys about cases in their jurisdictions,” said a statement from the Justice Center. “Although the Legislature authorized the Justice Center special prosecutor to pursue criminal charges without the consent of the local District Attorneys, we both consult with and obtain the DA’s agreement before pursuing a prosecution. In the Viviani case, we consulted with the DA who agreed in writing to have the Justice Center Special Prosecutor handle the case.”
The Court of Appeals
In 2013, an employee at the Finger Lakes Residential Center, a home for juvenile delinquents in Tompkins County, was charged with assault for striking a 14-year-old boy in the face.
The Lansing Town Court judge presiding over Martesha Davidson’s case ruled the Justice Center does not have jurisdiction in local courts but only state courts and only cases that go first in front of a grand jury. As such, the judge dismissed the case. The Justice Center appealed and the lower Appellate Division ruled in its favor. The Court of Appeals, the state’s highest court, then opted to hear the case.
In a three-two decision, the court ruled Davidson’s attorney never “preserved” the issue at the town court level, therefore the court could not properly examine the merits of the case. To preserve an issue means the attorney at the local level – be it in town or county court – needs to object to a facet of the proceeding by going on the record with his or her concerns.
In other words, Davidson never let the lower court know she would challenge the constitutionality of the Justice Center’s jurisdiction. The Court of Appeals, according to the decision, opted to hear the case after Attorney General Eric Schneiderman filed an amicus brief stating his concerns with how the Justice Center established jurisdiction. An amicus curiae brief means “friend of the court,” or that the AG was not actively involved in the litigation, but is acting as a “friendly observer.”
Basically, the Justice Center argued it does have concurrent authority and does not need the DA’s permission or oversight. The AG argued only the DA has the power to prosecute within their county and the Justice Center can only proceed with the DA’s consent and oversight and the DA is the only ultimately responsible for disposition of the case.
The court’s decision, which essentially upholds the current jurisdictional parameters, did not address the merits but only the technical flaw, and the Davidson case was remanded back to the Lansing Town Court.
Rivera, however, in her dissent, did address the crux of the matter: Can the governor unilaterally appoint an unelected special prosecutor who could usurp jurisdiction from an official who has the constitutional responsibility to prosecute cases in each county and who is elected by the people to uphold the law?
“The Legislature may not transfer or diminish the core responsibilities and prosecutorial power of a constitutionally elected officer, such as the District Attorney, through appointment of an unelected official,” she wrote, citing existing case law to support her stance.
In her dissent, she said the legislation giving the Justice Center the same authority as a DA is not only flawed because it violates the state Constitution but is dangerous.
The “awesome power” of the state, Rivera wrote, can not only incarcerate a person but the simple allegation of a crime can have a devastating effect on a person, and therefore should not come from a person holding a politically appointed position but rather one elected and answerable to the people.
“The mere act of bringing charges can have profound and far-reaching effects on a person,” she wrote. “A person’s reputation can be ruined, employment terminated and finances placed in jeopardy, regardless of whether that person is later acquitted or the charges are dropped.
“Under our constitution and case law the ‘Awesome power’ of unchecked prosecutorial authority requires public oversight and cannot be held by an unelected official.”
She believes the only way the Justice Center can properly take jurisdiction is with permission from the DA, or possibly the AG, who is also granted the constitutional responsibility to prosecute cases in this state. The Justice Center, she wrote, cannot act concurrently with a DA but only under the auspices and supervision of each DA.
Laurie Shanks, a long time defense attorney and professor at Albany Law School, agreed with Rivera’s assessment of unilaterally appointing a prosecutor who is not answerable to the public by an election.
“It sets a very dangerous precedent,” she said. “What happens if the prosecutor or whoever gave the person prosecutorial powers, has a personal or a political agenda? I totally agree with Justice Rivera in that the ‘mere allegation’ can potentially ruin a person’s life. That is why we have prosecutors who are answerable to the public.”
The state constitution gives the right to prosecute certain cases to the AG and other cases to the DAs. There are instances where special prosecutors are appointed, but they are appointed by a judge and it’s usually only done when there is a conflict preventing the DA’s involvement in a case.
The Justice Center announced the arrest of Viviani in September, alleging the 30-year-old English teacher at the LaSalle School (not LaSalle Institute in Troy) was having a salacious affair with one of her students.
It claimed to have telephone conversations, explicit photos and texts and in the press release sent a photo of the two of them seemingly enjoying themselves on a get-away to New York City.
Pollok, her attorney, has a motion pending to dismiss the case. He claims the Justice Center trumped up the charges based on fabricated testimony and proof but also pointed to Rivera’s opinion and the constitutional questions it asks.
“If the Court is disinclined to hold the statute unconstitutional, the Indictment should nonetheless be dismissed because the People have failed to prove that the Justice Center’s special prosecutor consulted and obtained consent from the Albany County District Attorney before commencing this prosecution and for that reason as well, the Indictment should be dismissed as violative of the provisions of Executive Law § 552(c),” he wrote.
Pollok said he would not comment at this time.
A spokeswoman for Albany County District Attorney David Soares, Cecelia Walsh, said the Justice Center did notify the DA’s Office of its intent to pursue charges against Viviani, as it does with any case it prosecutes. But, she said, the office does not give consent or maintain responsibility for the case. Since DAs and the Justice Center deal with the same laws, the notification is just to guard against the DA bringing the same charges and any potential double jeopardy issue.
She said, as it’s written now, state law does not require the DA give consent.
The AG was supposed to file a motion based on Soares’ response by Dec. 15, but it got a week extension.
“In the present matter, the Attorney General has concluded that the record does not make clear whether your office retained ultimate prosecutorial responsibility and authority when authorizing this prosecution, as required by the analysis of the Court of Appeals who reached the constitutional issue in Davidson,” Amend wrote in the letter obtained by SpotlightNews.
Click to view the AG letter to Soares
The state legislature
Meanwhile, there is a bill pending in the state Legislature that would clarify the technical issues brought forth in Davidson – that the Justice Center could prosecute in town court – but does not address the constitutional issues discussed by Rivera and Pollok.
“This bill would clarify that the Special Prosecutor and Inspector General (“Special Prosecutor”) at the Justice Center for the Protection of People with Special Needs (“Justice Center”) has concurrent authority with District Attorneys to prosecute offenses involving abuse or neglect of vulnerable persons by custodians,” according to the bill sponsored by Sen. Robert Ortt, R-62 District.
The bill, requested by the Justice Center and sponsored by Ortt, did pass the Senate in June 2015 and would have changed the jurisdiction of the Justice Center retroactive to when the it opened its doors in 2013. It never made it out of the Assembly Rules Committee, though, and both houses would have to pass an identical bill and then need the governor’s signature to become law.
While there is some chatter about the legislature returning to session this year, they are not formally scheduled to return to Albany until early 2017.