ALBANY – After seeing three cases thrown out based on the legal opinion the state Justice Center for the Protection of Special Needs does not have the constitutional authority to unilaterally prosecute cases, a judge in Bronx County ruled the Delmar-based agency does have the right to bring criminal charges.
Judge Ralph Fabrizio said, in a nine-page ruling dated Nov. 21, the Justice Center did include the local district attorney in prosecuting Sikiru Akande, a 53-year-old charged with breaking the arm of a 10-year-old in his care at the Henry Ittelson Center in June, 2016.
Akande’s attorney made a motion to dismiss based on the same argument successfully used by defense attorneys in Albany County Court – the state Constitution does not give the Justice Center the authority to prosecute cases unless it is done with the oversight of an elected county District Attorney or the state Attorney General.
In this case, Fabrizio wrote, the Justice Center and the DA did sufficiently cooperate and the DA does have oversight based on nothing more than the logistics of the legal system.
“It is understood that the District Attorneys, of course, retain the ultimate, nondelegable responsibility for prosecuting all crimes and offense,” the judge wrote. “This case was not heard behind closed doors; it is being heard in a calendar part specifically designated to preside over all cases involving allegations of child abuse brought in Bronx County. Thus a Bronx ADA is present in the same courtroom at each time this case is on the calendar.”
He wrote the 2012 state law creating the Justice Center does not take any power away from the DA, but noted any special prosecutor must “prosecute offenses involving abuse or neglect only after consultation with the district attorney … having appropriate jurisdiction.”
“Executive Law contains no language that can be read to deprive any local District Attorney of such authority to bring any prosecution, let along one involving only misdemeanor charges,” Fabrizio wrote. “It also does not transfer any essential prosecutorial function from the District Attorney to the special prosecutor.”
The judge determined the Justice Center did consult with the Bronx DA’s office at a level to satisfy what is written in state law. He then outlined how ADAs set up grand jury time and assisted with the prosecution.
“Based on the information and documentation provided in the special prosecutor’s response to the defendant’s motion, the court finds there was more than enough consultation with the Bronx District Attorney prior to the District Attorney’s Office providing valid written consent for the special prosecutor to present this case to a grand jury and appear in court to prosecute the crimes,” Fabrizio wrote. “If this information is insufficient, it is hard to imagine what information would be considered sufficient to satisfy the statuary criteria.”
The judge, in a footnote, said Justice Center should alert the Bronx DA to any developments including court dates and/or plea deals.
It is unclear whether or not the Justice Center followed different procedures in this case than the three that got bounced in Albany County earlier this year.
In the first, Albany County Judge Tom Breslin ruled the Justice Center did not act within its Constitutional authority because the office of DA David Soares did not retain any sort of oversight or control of the prosecution of Marina Viviani, a woman accused of having sex with a student at the LaSalle School while she was a teacher.
The other two cases, against Hope House employees accused of having sex with clients, were thrown out based on a similar argument. Attorney General Eric Schneiderman agrees with the opinion that only an elected DA and/or AG can bring criminal charges and his office, in court papers and appearances, has sided with the defense attorneys.
As of last week, the Justice Center has not filed a formal appeal of the three cases tossed in Albany County. It is unclear who represents Akande, or if that attorney will file an appeal, though he or she may have more motivation than the Justice Center to do so.
