ALBANY — The state’s highest court ruled that the special prosecutor created by the governor for the Justice Center for Person’s with Special Needs is unconstitutional.
As such, the court upheld the dismissal of three convictions brought by the Justice Center in a unanimous ruling dated March 30.
The decision does questions the foundation of how the Justice Center conducts business but a spokeswoman said the organization created in 2012 will continue.
“It’s clear that the Court of Appeals recognizes the critical role the Justice Center plays in the protection of vulnerable people,” said Christine Buttigieg. “The agency’s core functions including investigating allegations of abuse and neglect continue uninterrupted. Additionally, the Justice Center has worked together with local District Attorneys on prosecutions for years and will continue to work cooperatively with their offices. We are reviewing the decision to determine how best to continue that work.
Of the three cases, the rape conviction of Marina Viviani set the stage for the other two. She was charged with having sex with a student while she was a teacher at the LaSalle School in Albany. In March 2017, Albany County Court Judge Tom Breslin threw out the case. In his ruling, he said the only way the Justice Center could prosecute would be if the district attorney granted permission and maintained oversight of and responsibility for the case.
That basis of that ruling followed the cases as they worked their way from county court to the Court of Appeals.
“The Appellate Division affirmed in all three cases, holding that the Legislature may not grant the special prosecutor ‘independent, concurrent authority with district attorneys to prosecute individuals accused of crimes against vulnerable persons,’” according to the most recent decision. “District Attorneys, the Appellate Division held, are elected constitutional officers who possess the ‘prosecutorial authority’ of determining ‘whom, whether and how to prosecute, and the Legislature has no authority to transfer that ‘essential function’ of a District Attorney ‘to a different officer chosen in a different manner.’”
The Justice Center was created with much fanfare in 2012 by Gov. Andrew Cuomo. It was given “concurrent” jurisdiction with local district attorneys and proceeded to investigate and prosecute cases based on the belief it had the authority to act independently of and on equal ground as the local district attorneys.
Breslin, in his decision, wrote the state statute creating the Justice Center “can pass constitutional muster by reading it to require the district attorney to maintain ultimate prosecutorial responsibility for the prosecution of any case.” And, he wrote, there was “no evidence” the office of Albany County DA David Soares maintained that responsibility, if it ever assumed it from the start.
The Justice Center has been investigating cases of neglect and abuse within state run or state funded homes for the disables since 2012 but the vast majority of cases do not involve any criminal charges. Most cases are settled by a staffer getting fired and being put on a do not hire list or facing some other form of sanction. Cases can also continue onto a civil proceeding.
The Court of Appeals found there was no precedent for allowing the governor and Legislature to create a “state-wide prosecutor” with “concurrent prosecutorial authority over a set of enumerated crimes.”
The Justice Center has said their mission is necessary because crimes against the disabled are too ignored by the law enforcement and prosecutorial powers that be, the DA’s office, do not have the resources or the expertise to handle the nuances of crimes against the developmentally or otherwise disabled.
But, according to the ruling, the Court of Appeals ruling said in 1801 the Legislature created the Office of the District Attorney and in 1818 it gave each DA jurisdiction over a county. It was made a constitutional officer in 1821 and in 1846 made the office an elective one.
“The legislature may not transfer or diminish the core responsibilities and prosecutorial powers of a constitutionally elected officer, such as a District Attorney, through appointment of an unelected official,” according to the decision.
What the ruling means to other cases brought to conclusion, either by a plea bargain or a jury decision, is not clear.
“Gov. Andrew Cuomo’s unconstitutional and illegal scheme disguised as a Justice Center to protect people with special needs was the exact opposite, it systematically obstructed justice by keeping thousands of reported crimes from county elected prosecutors – ultimately protecting the abusers,” said Michael Carey, a disability rights advocate. “Now that Cuomo’s Justice Center is exposed and deemed unconstitutional by the top State court, it must be dismantled immediately, my 911 Civil Rights Bill must be swiftly enacted by law so that all reported crimes get to the local police and county elected district attorneys that are in place to ensure justice for everyone.”