STATE OF NEW YORK SUPREME COURT THE PEOPLE OF THE STATE OF NEW YORK, - against - MARINA VIVIANI, [APPEARANCES For the People: Patricia E. Gunning Special Prosecutor/Inspector General Justice Center for the Protection of People with Special Needs 18 Delaware Avenue Delmar, NY 12054 HON. P. David Soares Albany County District Attorney Albany County Judicial Center 6 Lodge Street Albany, NY 12207 Eric T. Schneiderman (Intervenor) attorney General for the State of New York 120 Broadway, 25'* floor New York, N¥ 10271 For the Defendant: Michael S. Pollok 7472 South Broadway PO Box 190 Red Hook, NY 12571 COUNTY OF ALBANY DECISION AND ORDER Indictment Number 6-7976 OF COUNSEL: Jacqueline Kagan Deputy Special Prosecutor David M. Rossi Chief Assistant District Attorney Andrew Amend Senior Assistant Solicitor GeneralTHOMAS A. BRESLIN, J. Defendant filed an omnibus motion which included a motion to dismiss the indictment due to the asserted unconstitutionality of the legislation which created the Justice Center for the Protection of People with Special Needs (hereinafter Justice Center) as well as the alleged lack of consent by the Albany County District Attorney for the Justice Center to prosecute the case. The Attorney General has intervened in order to address the constitutional aspects of the challenge. The Justice Center has opposed the motion to dismiss. Inasmuch as the resolution of this issue might be dispositive of this case, the parties appeared in court on March 9, 2017 to present arguments to the court. Briefs have been submitted by defendant, the Justice Center and the Attorney General. At the invitation of the court to provide further information, the District Attorney has provided an affidavit by Chief Assistant District Attorney David Rossi. ‘hereafter, both defendant and the Attorney General responded to the District Attorney’s letter. This court finds the dissent in People v Davidson (27 NY3d 1083 [2016]) to be persuasive (the majority did not reach the Constitutional issue). Thus this court adopts the dissent’sposition that the statute can pass constitutional muster by reading it to require the District Attorney to maintain ultimate prosecutorial responsibility for the prosecution of any case. In the instant case, the Albany County District Attorney (hereinafter District Attorney), through one of the Assistant District Attorneys, verbally agreed that the Justice Center would proceed to prosecute the case. Subsequent to the decision in the Davidson case, this agreement was later memorialized in a written statement to that effect It is the position of the Attorney General that the statement provided by the Assistant District Attorney that it is agreed that the Justice Center “will proceed with the criminal prosecution” is inadequate to assure this court that the District Attorney retains ultimate prosecutorial authority in this case. The Justice Center takes the position that they do not need the consent of the District Attorney to prosecute, but even if this court determines that consent is required, that they did obtain consent of the District Attorney. In the alternative, the Justice Center argues that there is no need to dismiss the case and that the case can be turned ever to the District Attorney to continue the prosecution.The District Attorney has provided further clarification of their position which is that the Justice Center has concurrent jurisdiction to prosecute certain offenses based on the authority of the Executive Law statutes and not based upon any authority granted by the District Attorney. It is stated that the Justice Center contacted the District Attorney to arrange time to appear before a grand jury to present the case. The Justice Center and the District Attorney thus take the position that both the District Attorney and the Justice Center each have authority to prosecute. The Chief Assistant District Attorney indicates that their office was made aware of the Justice Center's prosecution and the District Attorney reserved time before a grand jury so that the Justice Center could present the case. There is no indication that the District Attorney or anyone in his office has been involved in this matter other than to schedule time for a presentation to a grand jury. ‘The document signed by an Assistant District Attorney indicates that it was agreed that the Justice Center would proceed with the prosecution. As the Assistant Attorney General notes in his last responsive memorandum, the letter from the District Attorney's office resolves an ambiguity regarding any possible delegation of prosecutorial authority by clarifying that there was no suchdelegation, and therefore the Constitutional requirements have not been met. There is no evidence that the District Attorney has retained ultimate prosecutorial authority and responsibility in this case. Accordingly, this court finds that the Justice Center did not have authority to prosecute this case and the case must be dismissed. The matter cannot be turned over to the District Attorney to continue to prosecute the case in that there has been no showing that the Justice Center was ever properly authorized to prosecute the case. The motion to dismiss is granted and the indictment is dismissed. In view of this action, there is no need to address the remaining motions filed in this case. This shall constitute the decision and order of this court. Dated: Albany, New York March 40, 2017 “ Sheek aad Thomas A. Breslin Supreme Court Justice