STATE OF NEW YORK ORIG Nay SUPREME COURT COUNTY OF ALBANY: THE PEOPLE OF THE STATE OF NEW YORK, ce - against - DECISION AND ORDER Indictment #: 19-8181 NICOLE HODGDON, Defendants. For the People: PATRICIA E. GUNNING Special Prosecutor/Inspector General Justice Center for the Protection of People with Special Needs (Rachel Dunn Esq., Supervising Assistant Special Prosecutor) 18 Delaware Avenue Delmar, New York 12054 For the Defendant: STEPHEN W, HERRICK 5 eG Public Defender County of Albany “ (Terence L. Kindlon, Esq., Chief Assistant Public Defender) 60 South Pearl Street Albany, New York 12207 For the State as to the Constitutional Issue: ERIC T. SCHNEIDERMAN Attorney General of the State of New York ‘(Barbara D. Underwood, Solicitor General, Anisha 8. Dasgupta, Deputy Solictor General, Andrew W. Amend, Esq., Senior Assistant Solicitor General of Counsel) 120 Broadway, 25" Floor ‘New York, New York 10271Roger D. McDonough, Justice Defendant’s omnibus motion includes a request for dismissal of the indictment on constitutional grounds. The People, represented by the Justice Center for the Protection of Special Needs (“Ju position that dismissal is warranted on constitutional grounds. The Court heard oral argument in this Center”), oppose the motion. The Attorney General has intervened and taken the matter on June 2, 2017. At the request of the Court, the Albany County Chief Assistant District Attorney and an Assistant District Attorney (Bureau Chief) appeared at the oral argument. The purpose of the request \was to enlighten the Court as to whether the Albany County District Attorney (“District Attorney”) was taking a different position in this matter as compared to prior Albany County Court matters involving the Justice Center. The District Attorney’s office has advised that they are taking the position, consistent with the wording of the enabling statute, that the Justice Center has concurrent jurisdiction to prosecute certain Penal Law offenses in this State, Further, the District Attorney ‘maintains that the Justice Center’s power is not based upon a grant of authority from the District Attorney but rather from the statute itself, During the pendency of the Court’s consideration of the motion, several parties have submitted recently decided related cases and other post-argument submissions. The Court will address the dismissal portion of the omnibus motion first, as it is potentially dispositive as to the entire indictment, Dismissal on Constitutional Grounds Defendant argues that Executive Law § 552, the enabling legislation for the Justice Center, represents an impermissible attempt to delegate prosecutorial authority to an unelected “Special Prosecutor” from the Justice Center. In support, defendant notes that the District Attorney has the ultimate responsibility for prosecuting crimes and offenses ans well as the sole discretion to conduct all phases of criminal prosecutions. Defendant contends that Executive Law § 552 impermissibly provides the Justice Center with concurrent authority with district attorneys to prosecute abuse and neglect crimes, Similarly, the Atorney General maintains that the Justice Center may only pursue the instant indictmentasa delegate of the District Attomey’s prosecutorial authority. Specifically, the AttorneyGeneral takes the position that the Legislature many not allocate prosecutorial authority to anyone other than a County District Attorney or the Attorney General himself. Here, the Attorney General argues that the District Attorney has not authorized the Justice Center to pursue this matter on the District Attorney’s behalf and subject to the District Attorney's ultimate retention of responsibility. Accordingly, the Attorney General argues that the instant indictment must be dismissed on constitutional grounds, Defendant and the Attorney General also rely upon analysi dissent in People v Davidson (27 NY3d 1083 (2016]), The Justice Center argues that the Legislature is empowered by the New York State in the two Judge Constitution to grant prosecutorial authority to whomever it deems necessary, Additionally, they maintain that the Legislature did not improperly delegate any of the District Attomey’s functions because both entities have concurrent prosecutorial jurisdiction, Further, the Justice Center ‘maintains that there is no case law or statutory support for the contention that only District Attorneys and the Attomey General have prosecutorial authority. ‘The Justice Center stresses that the authority to prosecute stems solely from legislation. Alternatively, in the event the Court is persuaded by the aforementioned two Judge dissent in People v, Davidson, the Justice Center maintains that the District Attorney has authorized this prosecution in accordance with the language of the dissent, In support, the Justice Center points to adocument signed by an District Attorney Bureau Chief containing the following language: “[I}t is agreed that the Office of the Special Prosecutor/Inspector General will proceed with the criminal prosecution(s) ...” The document includes the case name of “P. v Nicole Hodgon”. The Justice Center argues that they have received the necessary consent and authorization and that there is no necessity for any retention of ultimate jurisdiction authority on the part of the District Attorney. In reply, defendant argues that the District Attomey’s consent here is insufficient to confer prosecutorial authority on the Justice Center. She also stresses that the District Attorney clearly has not retained the ultimate responsibilities of his office as to this indictment, Finally, defendant re- siresses the Justice Center's unelected status, lack of any tenure limits and lack of any accountability to the public. “It is well settled that acts of the Legislature are entitled to a strong presumption of constitutionality . . .” (Matter of Cohen 19 NY3d 196, 201 [2012}). Nevertheless, theCourt must also consider the Attorney General’s unique stance here of actually challenging the constitutionality of the statute rather than seeking to uphold it (see, Santangelo v State, 193 AD2d 25, 30 [2™ Dept, 1993]). ‘The Court finds that the Justice Center and the District Attorney’s statutory interpretation and implementation is wholly inconsistent with the District Attorney’s “ultimate, nondelegable responsibility for prosecuting all crimes and offenses. . ” (People v Soddano, 86 NY2d 727, 728 [1995]. For the statute to be viable, it appears that the Justice Center's appearance must actually be on behalf of the particular County District Attorney as opposed to merely with her/his consent (see, People v Van Sickle, 13 NY2d 61, 63 [1963]). As the Justice Center and the District Attorney have made clear, the District Attorney has not retained the ultimate responsibility to prosecute here, and the Court is therefore constrained to find that the Justice Center does not have authority to prosecute this case, ‘The Justice Center’s remaining arguments and requests for relief have been considered and found to be lacking in merit, Based on the foregoing, the indictment pending against defendant is hereby dismissed. Accordingly, the Court need not reach the remaining requested relief set forth in the omnibus motion. SO ORDERED. Dated: Albany, New York August 21, 2017 7 McDonough ! Rog cl Acting Supreme Court Justice