District Court of Nassau County, First District, February 20, 2018

Madeline Singas, District Attorney, Hempstead, and Edwin Ferguson, Assistant Special Prosecutor, Office of the Special Prosecutor/Inspector General, New York State Justice Center for the Protection of People with Special Needs, Brooklyn, for plaintiff.

Agulnik & Gogel, LLC, Great Neck, for defendant.

Eric T. Schneiderman, Attorney General, New York City, for Attorney General, intervenor.

A hearing took place on October 12, 2017, in accordance with a decision dated July 24, 2017, in order to determine facts which establish whether a permissible authorization took place to allow the Special Prosecutor to proceed with the prosecution of the defendant. The defendant initially moved to dismiss the charges of violating Penal Law § 260.24 (endangering the welfare of an incompetent or disabled person) (six counts), Penal Law §§ 110.00 and 120.00 (1) (attempted assault in the third degree) (three counts), Penal Law § 120.15 (menacing in the third degree) (three counts) and Penal Law § 240.26 (harassment in the second degree) (three counts). In the initial moving papers, the defendant raised issues charging the statute authorizing prosecution by the Special Prosecutor for the Protection of People with Special Needs (Executive Law § 550 et seq.) was unconstitutional because the District Attorney failed to "retain final authority and ultimate responsibility" for the prosecution of the charges and that the Special Prosecutor lacked the authority to independently prosecute the defendant.

The District Attorney established during the hearing by way of background that beginning in January 2015, an arrangement was made to allow the Special Prosecutor to prosecute a case involving crimes committed against a person with special needs because the Special Prosecutor originated and conducted the investigation. Ultimately, that case proceeded to disposition and sentence. Following the initial case in November 2015, a procedure was memorialized in an email from an executive assistant district attorney that going forward, the Nassau County District Attorney [*2]would handle any complaint involving a crime against a person with special needs which the New York State Justice Center for the Protection of People with Special Needs received by the hotline complaint system.

However, the incident of which the defendant is accused occurred in August 2015. The Nassau County District Attorney{**59 Misc 3d at 527} received no notification about the incident until February 2016 when the Justice Center contacted a deputy bureau chief in District Court and sought help to proceed with the prosecution of the defendant. The deputy bureau chief provided assistance by reviewing the accusatory instrument, forwarding the accusatory instrument to the court clerk for filing, and navigating the attorney for the Justice Center through the arraignment process in Nassau County.

The Justice Center performed the investigation of the case, working with the Nassau County Police Department. The Justice Center determined what charges should be lodged. The Justice Center also made the decision to reduce the felony charges without any assistance from the Nassau County District Attorney's office.

The Nassau County District Attorney did not become further involved in this case until the defendant moved to dismiss this case on constitutional grounds in May 2017. Thereafter, on the date the motion to dismiss was to be submitted, June 30, 2017, the deputy bureau chief appeared in court and read into the record a statement that "the Nassau County District Attorney's office expressly consents to the Justice Center and their Special Prosecutor prosecuting this defendant of the instant charges, although the DA's office has delegated to the Special Prosecutor to handle this prosecution, we retain authority to override their decisions in this case." (June 30, 2017 tr at 3, lines 6-12.)

The Justice Center maintained throughout the pendency of the case and explicitly during the motion practice giving rise to this hearing that their authority is independent of that given to the Nassau County District Attorney under the New York State Constitution.

The New York State Constitution designates that the District Attorney and the Attorney General are constitutional officers permitted to prosecute matters in the courts of New York (see People ex rel. Wogan v Rafferty, 208 NY 451, 456 [1913]; NY Const, art V, § 1; art XIII, § 13 [a]). The District Attorney bears the ultimate responsibility for prosecution of criminal matters (People v Soddano, 86 NY2d 727, 728 [1995]). Further, the legislative grant of authority given the New York City Special Narcotics Prosecutor (Judiciary Law § 177-c) or the Deputy Attorney General in charge of the Statewide Organized Crime Task Force (Executive Law § 70-a), who derive their authority through the constitutional officers of the applicable county District Attorneys or the Attorney General, does not apply to{**59 Misc 3d at 528} the Special Prosecutor in this case. Therefore, the position advanced by the Justice Center of independent authority to prosecute this case based solely upon the legislative grant of authority under Executive Law § 550 et seq., including CPL 1.20 (32) (defining a district attorney to mean the Inspector General of the Justice Center and the Assistant Special Prosecutors), is constitutionally impaired in the first instance.

Nonetheless, statutory construction requires that statutes be read as to avoid constitutional conflict (Matter of Lorie C., 49 NY2d 161, 171 [1980]; see also Rector, Church Wardens & Vestrymen of St. Bartholomew's Church v Committee to Preserve St. Bartholomew's Church, 84 AD2d 309, 315-316 [1st Dept 1982]). The authority granted the Justice Center would in fact be constitutional when interpreting the powers set forth in the Executive Law as derivative of the District Attorney. Thus, the consent of the District Attorney, the knowledge of the prosecutor, [*3]and the retention of ultimate responsibility by the District Attorney would be necessary (People v Soddano; People v Van Sickle, 13 NY2d 61, 62-63 [1963]).

Here, knowledge of the prosecution existed. The deputy bureau chief reviewed the proposed accusatory instrument and ultimately forwarded the felony complaint to the court clerk for filing and arraignment (testimony of Kara Kaplan, Oct. 12, 2017, at 60-62). Further the deputy bureau chief formally consented to allow the Special Prosecutor and Justice Center to prosecute the case while retaining ultimate authority over the case as required under Soddano and Van Sickle.

The failure of the Nassau County District Attorney to formally authorize the prosecution until the statement made on the record on June 30, 2017, does not render the accusatory instrument subject to dismissal. The acts of the deputy bureau chief in filing the accusatory instrument and the formal and explicit consent to prosecute satisfy the requirements of the designation of the Special Prosecutor to proceed and continue with the day-to-day management of the case.

Further, neither case law nor any statutory framework define the degree to which a district attorney must be involved in the day-to-day management or decision-making despite the arguments raised by the defendant as to the degree of involvement. There has been no showing of any breach of law which requires dismissal. There are no other reasons to dismiss set forth other than the constitutional grounds asserted by the defendant (see People v Bondi, 99 Misc 2d 360 [Monroe County Ct 1979]).{**59 Misc 3d at 529}

Clearly, the stated position of the Special Prosecutor as to the independent right to prosecute the defendant is wrong. Further, any claim that one or more members of the Nassau County District Attorney's office acceded to the Special Prosecutor's claim of independent right to prosecute under Executive Law § 552 does not invalidate the prosecution in light of the subsequent ratification of the Special Prosecutor's actions and consent to prosecute made on behalf of the Nassau County District Attorney. The responsibility of the prosecution remains with the District Attorney.

The standard by which the District Attorney oversees a particular prosecution is broadly defined as to be kept aware of all criminal prosecutions in the county (Soddano at 728) or to set up a system to know of all the prosecutions in the county (Van Sickle at 62-63). The District Attorney can authorize the duties of prosecution to others but cannot transfer the fundamental responsibilities of prosecutorial authority to anyone else (Matter of Schumer v Holtzman, 60 NY2d 46, 52 [1983]). However, the requirements to be aware of the prosecution do not demand the District Attorney be consulted as to each and every decision made in the prosecution. There need only be the acceptance of the responsibility for the decisions made by the prosecutor and the ability to intercede.

The defendant does point to instances of lack of involvement in the day-to-day management of the case to argue that the Special Prosecutor operated independently of the District Attorney. However, the District Attorney need not be involved in every decision of each prosecutor. Where, as here, the District Attorney retains the ultimate responsibility for the prosecution, the constitutional and legal obligations are met.

Overseeing the day-to-day administration of a case is not a judicial function, but instead it is to judge whether the prosecution is conducted in accordance with law. There was no violation [*4]of the law as raised by the defendant in this case.

The motion to dismiss is denied.