Top NY Court Leery of Slippery Slope in Sex-Crime Prosecutions

A system in which special prosecutors go after state employees for sex crimes against people with special needs has the New York Court of Appeals worried about granting the governor too much power.

(Courthouse News photo / William Dotinga)

ALBANY, N.Y. (CN) — Hearing three cases involving the sexual abuse of people with special needs, New York’s highest court appeared worried Wednesday that allowing special prosecutors in those cases could open the floodgates for a wave of unaccountability.

However it rules, the Court of Appeals faces a Catch-22: Invalidate the special prosecutors who are picking up the slack on previously unenforced crimes, or risk giving the governor unprecedented powers. 

It was after The New York Times published a series detailing horrific conditions at large institutions, as well as lax prosecution of abuse, that Governor Andrew Cuomo created the Justice Center for the Protection of People with Special Needs in 2013 to protect more than 1 million disabled adults and children from abuse and neglect.

In the series, the newspaper found that only 5% of abuse accusations were forwarded to law enforcement and that state employees who physically or sexually abused residents were often not fired but instead transferred to another group home.

After the Justice Center was created, however, special prosecutors began aggressively pursuing such cases. The center is currently investigating early 3,000 cases of abuse and neglect.  

Three state employees — Marina Viviani, Justin Hope and Nicole Hodgdon —were prosecuted for allegedly committing sex crimes against vulnerable persons at state-supervised facilities. But after lower courts ruled that the Justice Center prosecutors did not have the same constitutional powers as district attorneys, their indictments were later thrown out.

An intermediate appeals court affirmed the dismissals, ruling the state Legislature could not grant special prosecutors “concurrent authority with district attorneys” since they were not elected. 

During oral arguments before the state’s high court on Wednesday, the Justice Center argued that there is nothing in the New York Constitution that prohibits both the governor and the Legislature from creating special prosecutors.

“The question here is whether the constitution prohibits anyone other than the AG or the DA from exercising prosecutorial authority,” said Caitlin Halligan, an attorney at Selendy & Gay who represents the Justice Center. 

Halligan, a former general counsel for the Manhattan district attorney’s office, argued there is a strong argument to be made for the governor having the sole power to establish special prosecutors, even without the legislature’s agreement. In this case, she added, the Legislature acted unanimously in supporting the Justice Center.

“The Legislature here exercised authority, which this court has confirmed repeatedly,” Halligan said. “Nothing in the constitution allocates prosecutorial power [strictly] to any public official.”

Several judges voiced concern, however, that granting such powers could lead to a slippery slope, wherein myriad issues would warrant carving out special roles for numerous special prosecutors. 

“Under your approach, there is no end to this,” said Judge Jenny Rivera. “At what point is it too much? Two other categories of crimes? Three? Four? Where do we draw that line?”

That line of questioning was later taken up by Judge Leslie Stein, who questioned whether a ruling by the high court could somehow invalidate the Organized Crime Task Force. 

Not so, Solicitor General Barbara Underwood assured Wednesday. “The Organized Crime Task Force is lodged within the Attorney General’s Office — is headed by a deputy attorney general — and the governor can do nothing with that alone,” she told the court. “OCTF fits squarely within that model.”

Other judges also worried about threading a difficult constitutional needle in these cases. “Concurrent authority means different prosecutors can do different things on the same case,” Judge Eugene Fahey said, referring to the powers granted to the attorney general and district attorneys. “Doesn’t that create a nightmarish public policy scenario?”

For attorney Michael Pollok — who represented Viviani, accused of having sex with a resident at a facility for troubled teens — the argument was simple: Granting such powers is in clear contravention of prior court precedent and imbues special prosecutors with unconstitutional authority.

“I’m all for having prosecutors protect the needs of special victims, but there are other ways to do it,” he said, saying they should instead hire more district attorneys. “The constitution clearly requires diffuse power between the county district attorneys. They are each elected. They are each accountable to their constituents. And the decision to prosecute somebody for a crime is an extreme power.”

Underwood, who has suggested a middle ground in placing the Justice Center under the auspices of the state attorney general, also raised the slippery-slope argument. “I’ll just speculate, because I don’t know, that there was an interest in establishing the principle that the governor can create an independent, free-standing prosecutor,” she said.

She noted there have been numerous calls for other special prosecutors over the years to handle police shootings, bias crimes and election fraud. “People have said, ‘well, they could do it for this special prosecutor, I guess it’s OK,’” she said. “I do know that it has since then been invoked as precedent for creating other independent, special prosecutors.”

Underwood later clarified that her office did not intervene to “protect anybody’s turf and certainly not to undermine the mission of the Justice Center.” The attorney general has suggested Justice Center prosecutors could be required to obtain the consent of district attorneys to operate within the bounds of the constitution.

“We’re here to fulfill our responsibility to the rule of law, to defend and enforce the constitution, to defend the law of the state of New York, and to reconcile them if possible,” she said.

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