Criminal Prosecution Power of Justice Center Limited by NYS Court of Appeals

On March 30, 2021, the New York Court of Appeals dealt a blow to the prosecutorial power of the Justice Center for the Protection of People with Special Needs (“Justice Center”).  The Court, in People v. Viviani, et. al.[1], held that the statute providing for the organization of the Justice Center, Executive Law § 552, impermissibly vested prosecutorial power in an appointee of the Governor.  This power, according to the Court, took an “essential function from a constitutional officer,” namely, the District Attorney, and gave it to “a different officer chosen in a different manner.”

Unfortunately for most providers, this decision does not impact or curtail the Justice Center’s vast civil investigatory and administrative powers, authority or processes. It offers little improvement to the method and  manner in which the Justice Center wields its civil powers that many entity or employee providers and attorneys agree are the result of overreaching or overreacting.

Prior to this week’s Viviani decision, the Executive agency, created in 2012, as part of its mandate and mission, was directly responsible for investigating and prosecuting crimes of abuse or neglect of vulnerable victims in certain facilities operated, licensed, or certified by the State.  Unlike other legislative schemes that delegate prosecutorial power to those operating in subordinate role to District Attorneys, Executive Law § 552, known as The Protection of People with Special Needs Act (the statute creating the Justice Center), created a new position of statewide prosecutor, appointed by the Governor, with concurrent prosecutorial authority over abuse and neglect allegations against vulnerable individuals.

Attorneys representing clients before the Justice Center have long argued that the unrestrained usurpation of a District Attorney’s prosecutorial power is unconstitutional.  Further, the Justice Center operated as if it was unbound by the same standards and prosecutorial traditions of District Attorneys leading to unfair or unsupported prosecutions.  In the classic case, a sitting District Attorney, in its discretion, could reject or decline to prosecute a criminal case as failing to meet prima facie elements or on the basis that the charge was ultimately not provable beyond a reasonable doubt, only to have the defendant then charged by the Justice Center.  No more says the Court of Appeals.

The further implications remain to be seen for those individuals already convicted of a crime prosecuted by the Justice Center. Short of an en masse motion to vacate brought on by the Justice Center itself, we can expect to see more filings seeking to set aside verdicts or pleas that did not have the District Attorney’s imprimatur.  Individuals should check with counsel on possible challenges to past convictions.

It is also important to note that the Court of Appeals did not strike down all of Executive Law § 552.  Although Justice Center prosecutors no longer have discretionary authority to bring criminal cases even with consent of the District Attorney, they are still permitted to “cooperate with” the local District Attorney, including by providing resources and making referrals.  Historic tensions, however, between the District Attorneys and the Justice Center are likely to persist.

A legislative fix, if it comes to pass, could vest ultimate prosecutorial and decision-making power with the District Attorney, resolving the constitutional issue going forward.

While this decision removing sole criminal prosecution is a move in the right direction for providers, the Justice Center’s civil powers  will remain the more consistent concern, and it is important for providers to be aware of the nuances of the Justice Center, its investigative and civil charging and trial practices, as well as their legal positions when confronted with a Justice Center’s civil investigation.  Justice Center legal practice is wrought with navigable mines.

This article was co-written by Jeffrey Ehrhardt, a law clerk and law school student who is not yet admitted to the New York State Bar.

[1] The Court of Appeals decision, 2021 NY Slip Op 01934 (2021), was issued after the Court granted leave to appeal to 3 separate Third Department cases involving indistinguishable facts: People v. Viviani, 174 A.D.3d 1069 (2019); People v. Hope, (174 A.D.3d 1069) (2019); People v. Hodgdon, 175 A.D.3d 65 (2019).