Almost two years ago, we wrote about a trifecta of cases out of Albany County that pointed towards constitutional deficiencies of Justice Center prosecutions. We noted these decisions could unravel the Justice Center’s prosecutions and, if upheld, could provide a significant rollback of the Justice Center’s authority in criminal matters.
Recently, on July 11, 2019, the Appellate Division, Third Department announced its decisions in this trio of cases challenging the authority of the NYS State Justice Center for the Protection of People With Special Needs’ special prosecutor.1 By significantly limiting the authority of the Justice Center’s special prosecutor, the Third Department’s decisions will affect all future prosecutions by the Justice Center and could potentially lead to a reexamination of all previous prosecutions.
The Lead Case: People v. Hodgdon
People v. Hodgdon involved a counselor at an Office of Alcohol and Substance Abuse Services (OASAS) licensed and certified residential substance-use disorder treatment provider for adolescent men. As an employee of a licensed and certified OASAS facility subject to oversight by the Justice Center, Hodgdon was indicted in February 2017 by an Albany County grand jury for rape in the third degree, sexual misconduct, and sexual abuse in the second degree––charges presented by a Justice Center assistant special prosecutor after Hogdgon allegedly engaged in sexual contact with a 16-year-old patient.
Pursuant to the Protection of People With Special Needs Act, the Justice Center has the authority to employ a special prosecutor who has the duty and power to investigate and prosecute offenses involving abuse and neglect committed against vulnerable individuals committed by employees of certain types of facilities and service agencies.2
Subsequent to the indictment, Hodgdon moved for dismissal, arguing this provision of the act was unconstitutional, as it granted prosecutorial authority to individuals other than the Attorney General or a district attorney. Notably, the Attorney General appeared in the matter and presented somewhat of a middle ground, agreeing with Hodgdon that the Legislature could not grant the Justice Center general prosecutorial authority, but the statute could be construed as in line with the NYS Constitution if the special prosecutor was required to obtain the consent of the district attorney, who would retain the ultimate responsibility for the prosecution.
Albany County Supreme Court’s Judge McDonough agreed with the Attorney General, and after determining the special prosecutor had not obtained adequate consent from the district attorney prior to prosecuting the matter, dismissed Hodgdon’s indictment.
On appeal, the Appellate Division, Third Department considered the Hodgdon case as well as the indictment dismissals for similar reasons by Judge Breslin in People v. Viviani and Judge Carter in People v. Hope, upholding all three lower court’s decisions to dismiss the indictments against the defendants. In considering the authority granted to the special prosecutor under the act, the Third Department upheld the lower court’s decisions, concluding:
(1) The Legislature may not grant prosecutorial authority.
The Third Department explicitly adopted the reasoning within the People v. Davidson3 dissent, an earlier criminal case that challenged the special prosecutor’s authority to prosecute offenses in local criminal courts. Penned by the NYS Court of Appeals’ Judge Rivera, the Davidson dissent concluded the Legislature lacked the power to grant “independent, concurrent authority with district attorneys to prosecute individuals accused of crimes against vulnerable persons.”
The court noted that district attorneys––who necessarily possess prosecutorial authority, including the power to make prosecution-related decisions––are constitutional officers chosen by election, and concluded the Legislature lacks any authority to transfer this decision-making power to an officer chosen by another manner, such as a special prosecutor being appointed by the governor instead of being elected by New Yorkers.
(2) The district attorney’s consent to and ultimate responsibility for the prosecution are required.
Expressing its agreement with the Attorney General and Judge Rivera’s Davidson dissent, the Third Department also concluded the act’s constitutionality could be preserved by placing limits on the special prosecutor’s power. Consistent with other statutes permitting the Attorney General to delegate prosecutorial authority to another executive agency, the Third Department held the Justice Center’s special prosecutor may only conduct prosecutions after obtaining knowing, written consent of a district attorney who must also agree to retain the ultimate responsibility for the prosecution.
Moreover, the court concluded a district attorney’s consent could only be knowingly given if two conditions are met: (1) the district attorney must understand the scope of the authority it is giving to the special prosecutor, and (2) the district attorney must know the facts of the case to allow for the exercise of their prosecutorial power in determining whether prosecution should occur.
(3) The Albany County district attorney did not validly consent to Hodgdon’s prosecution.
Applying these rules to the prosecution at hand, the Third Department concluded the Albany County district attorney did not properly consent to Hodgdon’s prosecution, and, as such, the lower court was correct in dismissing the indictment. According to the court, the district attorney’s consent to the prosecution––provided through a form agreeing that the special prosecutor would proceed––fell short for two reasons.
First, the court determined the district attorney failed to use their prosecutorial power to determine whether Hodgdon would be prosecuted, as the district attorney simply agreed to prosecution by the special prosecutor. This was evidenced by the district attorney’s acknowledgement in an affidavit that consent was given with the faulty understanding that it was not necessary, and the special prosecutor already had the independent authority to prosecute Hodgdon.
Second, the Third Department concluded the consent was flawed, as the district attorney did not expressly retain the ultimate responsibility for the prosecution, a fact conceded by the Justice Center.
Notably, although both of these consent-related failures were present in this case, the Third Department was careful to point out that either one alone would have been fatal to the district attorney’s consent and the special prosecutor’s authority.
For these reasons, the Third Department affirmed Judge McDonough’s decision to dismiss the indictment, as the Justice Center’s special prosecutor lacked the authority to prosecute Hodgdon. Additionally, the court also affirmed the Albany County Supreme Courts’ decisions in Viviani and Hope for these same reasons.
The Future of the Justice Center
The Third Department’s decision to significantly limit the authority of the Justice Center’s special prosecutor will undoubtedly have an effect on the agency’s practices. At the outset, the decisions will affect all future prosecutions by the Justice Center and may lead to less threats of criminal prosecution, as the district attorney will maintain the ultimate prosecutorial decision-making authority rather than vesting this authority in the Justice Center.
Additionally, this decision could lead to a reexamination of all previous Justice Center prosecutions, as the NY Criminal Procedure Law permits defendants to motion to vacate a judgment on the ground that it was obtained in violation of the defendant’s rights under the NYS Constitution.4 This could lead to Justice Center prosecutions being vacated on the grounds that consent and the district attorney’s retention of ultimate authority were not maintained. However, it is likely that the story does not end here, as the Justice Center has already made its intent to appeal these decisions to the Court of Appeals, New York’s highest court.
As due-process concerns related to Justice Center investigations continue to be an ongoing problem and issues like right to individual and agency counsel reach a fever pitch, the stakes for individual employees and provider agencies are increasingly high. Although the challenges for providers and employees in navigating these investigations are certainly far from over, the Third Department’s decision feels like a step in the right direction and, not to mention, an undeniable chink in the Justice Center’s armor.
1 People v. Hodgdon, 2019 N.Y. App. Div. LEXIS 5598 (3d Dep’t July 11, 2019); People v. Hope, 2019 N.Y. App. Div. LEXIS 5607 (3d Dep’t July 11, 2019); People v. Viviani, 2019 N.Y. App. Div. LEXIS 5625 (3d Dep’t July 11, 2019)
2 See N.Y. Exec. Law § 552(2).
3 People v. Davidson, 27 N.Y.3d 1083, 1086–96 (2016) (Rivera, J., dissenting)
4 See N.Y. Crim. Proc. Law § 440.10(1)(h).
If you have any questions regarding the content of this alert, please contact Dena DeFazio, associate, at ddefazio@barclaydamon.com; Linda Clark, health care controversies team leader, at lclark@barclaydamon.com; or Bob Hussar, partner, at rhussar@barclaydamon.com or another member of the firm’s health care controversies team.