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
GeneralTHOMAS 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’sposition 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.