‘STATE OF NEW YORK ALBANY COUNTY COURT ALBANY COUNTY JUDICIAL CENTER 6 LODGE STREET ALBANY, NEW YORK 12207 (618) 285-8759 WILLIAM A. CARTER COUNTY COURT JUDGE July 28, 2017 Rachel P. Dunn, Esq. Justice Center for the Protection of People with Special Needs 18 Delaware Avenue Delmar, New York 12054 ‘Andrew Rhys Davies, Esq. Office of the Attorney General State of New York 120 Broadway, 25" Floor New York, New York 10271 Lee C. Kindlon, Esq. 74 Chapel Street Albany, New York 12207 Re: People v Justin Hope Ind # 3-8215 Dear Counselors: ‘A copy of Judge Carter's July 28, 2017 decision and order relative to the above case follows. Very truly yours, 4 iy 4 ten hinadthx ‘TAMMY L. PLUMADORE Secretary to the JudgeSTATE OF NEW YORK COUNTY OF ALBANY ‘THE PEOPLE OF THE STATE OF NEW YORK, -against- JUSTIN HOPE, Defendant. APPEARANCES: FOR THE PEOP! PATRICIA E. GUNNING Special Prosecutor/Inspector General Justice Center for the Protection of People with Special Needs 18 Delaware Avenue Delmar, New York 12054 HON. ERIC T. SCHNEIDERMAN (Intervenor) Attorney General State of New York 120 Broadway, 25" Floor New York, New York 10271 FOR THE DEFENDANT: LEE C, KINDLON, ESQ. 74 Chapel Street Albany, New York 12207 WILLIAM A. CARTER, J. COUNTY COURT DECISION AND ORDER Indictment No. 3-8215 OF COUNSEL: RACHEL P. DUNN, ESQ. Supervising Assistant Special Prosecutor ANDREW RHYS DAVIES, ESQ. Assistant Solicitor General (On March 10, 2017, the defendant was charged by indictment with two (2) counts of criminal sexual act in the third degree, class E felonies (Penal Law § 130.40 [1]); endangering the welfare of an incompetent or physically disabled person in the first degree, an E felony(Penal Law 260.25); two (2) counts of sexual misconduct, class A misdemeanors (Penal Law § 130.20 [2]); and two (2) counts of sexual abuse in the second degree, class A misdemeanors (Penal Law § 130.60 [1]). The defendant, by omnibus motion, moves, inter alia, for dismissal of the indictment alleging that the legislation creating the Justice Center for the Protection of People with Special Needs (hereinafter Justice Center), unconstitutionally grants prosecuting authority to the Justice Center. ‘The constitutionality of Executive Law § 552 was recently addressed by Judge Rivera in her dissent in People v Davidson (27 NY3d 1083 [2016]). While the Court's majority did not reach the constitutional issue, Judge Rivera specifically addressed “the knotty question of whether the legislature may create an unclected, Governor-appointed Special Prosecutor, independent of the local District Attorney.” Ultimately, the Davidson dissent found Executive Law § 552 to pass constitutional muster, only if the County District Attorney retains final authority and ultimate prosecutorial responsibility over the matter. This Court adopts the holding, of the Davidson dissent and further finds People v Viviani (Sup Ct, Albany Co, Mar 30, 2017, Breslin, J. Ind. No. 6-7976) to be persuasive authority. Here, it is the position of the Attorney General that the record needs factual development conceming the extent of contacts between the Albany County District Atomney’s office and the Justice Center regarding the investigation and prosecution of this case. The Justice Center maintains that record development is unnecessary as the Albany County District Attorney's Office did not maintain ultimate prosecutorial authority in this case and was not constitutionally required to do so. Prosecutorial authority, the argument continues, was provided to the Justice Center, concurrent with elected District Attorneys, by legislative grant and not based upon any authority granted by the Albany County District Attorney. The Justice Center's legal argumentsin the instant matter are seemingly indistinguishable from legal arguments expressed by it and the Albany County District Attorney's Office in People v Viviani (supra). The Justice Center has significantly simplified the issue before the Court in acknowledging that the Albany County District Attorney did not retain ultimate prosecutorial authority and responsibility in this ease (see People’s Resp to Att Gen Memo at 10). Pursuant to the Davidson dissent and Viviani, this, Court finds that the Justice Center did not have unilateral authority to prosecute this ease. Moreover, the Court finds that this matter cannot be turned over to the Albany County Distriet Attomey as there has been no showing that the Justice Center was ever authorized to prosecute the case in the first instance (see People v Viviani, supra). Accordingly, the defendant’s motion to dismiss the indictment is granted. The Court's dismissal of the above charges renders any remaining motions moot. This shall constitute the Decision and Order of the Court. Dated: Albany, New York July 28, 2017 Z WILLIAM A. CARTER, JCC