New York’s top court strikes down role of special prosecutor

Role protecting people with special needs is called unconstitutional

The state Court of Appeals in a decision released Tuesday ruled that the creation of a statewide special prosecutor to handle crimes against the most vulnerable was unconstitutional.

The state’s top court agreed with the plaintiffs — three individuals prosecuted by the office in question — that Gov. Andrew M. Cuomo and the Legislature had carried out “an unconstitutional delegation of core prosecutorial authority away from the county district attorneys — elected constitutional officers — to an unelected appointee of the governor.”

The special prosecutor’s office, part of the Justice Center for the Protection of People with Special Needs, was created as part of the 2012 Protection of People with Special Needs Act. The prosecutor was to be appointed by the governor and empowered to investigate and prosecute crimes of abuse or neglect of vulnerable victims in facilities operated, licensed or certified by the state.

“All told, there is simply no analogy — in precedent or in statute — to (the law’s) ... creation of a statewide prosecutor, appointed by the governor, with concurrent prosecutorial authority over a set of enumerated crimes,” the decision states, upholding decisions by lower courts.

The state attorney general’s office had asked the court for a “saving construction” that would allow the justices to read into the law certain conditions on the special prosecutor’s authority.

The court dismissed that idea: “We recognize that this well-intentioned legislation was aimed at protecting a particularly vulnerable class of victims,” the decision states. “But we cannot rewrite a statute in order to save it.”

The decision preserved the ability of the office to assist district attorneys in bringing such cases.

In a statement, the Justice Center said it “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.”

It’s unclear how many cases prosecuted by the Justice Center without the participation of a district attorney might now be subject to appeal.

One of the three plaintiffs in the case who challenged the law was a former Albany teacher who was alleged to have had sex with one of her students at the Lasalle School for troubled youngsters.

State Supreme Court Justice Thomas Breslin dismissed the case against Marina Viviani in 2017 because the Justice Center hadn’t worked under the supervision of the Albany County district attorney’s office in its prosecution.

“There is no evidence that the district attorney has retained ultimate prosecutorial authority and responsibility in this case,” Breslin wrote in his decision. Viviani was charged with rape, criminal sexual act and four misdemeanor sex crimes.

Her lawyer, Michael Pollok, had argued she was innocent of the charges, while also arguing against the constitutionality of the office.

In the Viviani case, the attorney general’s office — then under the leadership of Eric Schneiderman — also raised questions about the state constitutionality of having unelected criminal prosecutors bring cases.

Of the hundreds of allegations the Justice Center gets each year, only a handful rise to the level of criminal prosecutions. Others have led to misdemeanors or firings, or both.

The decision was unanimous, although Chief Judge Janet Difiore did not take part. The top court is currently working with one empty seat due to the recent resignation of Judge Paul Feinman for health reasons.