Justice Homas Breslin

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Viviani filed an omnibus motion moving to dismiss the indictment alleging the unconstitutionality of the legislation that created the Justice Center for the Protection of People with Special Needs (JC). The motion also alleged the lack of consent by the District Attorney for the JC to prosecute the case. JC opposed the motion, and the attorney general intervened to address the constitutional aspects of the challenge. The court adopted the dissent’s position in People v. Davidson, 27 NY3d 1083, that the statue could pass constitutional muster by reading it to require the DA to maintain ultimate prosecutorial responsibility for the prosecution of any case. The AG opined the statement by the ADA that it agreed for the JC to proceed with the criminal prosecution was inadequate to assure the court the DA retained ultimate prosecutorial authority herein. JC and DA both claimed they each had authority to prosecute. The court found there was no evidence the DA retained ultimate prosecutorial authority and responsibility in this case. As such, it found the JC did not have authority to prosecute this case, and it must be dismissed. Also, the matter may not be turned over to the DA to continue prosecution as there was no showing the JC was ever properly authorized to prosecute the case.

Justice Homas Breslin

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Viviani filed an omnibus motion moving to dismiss the indictment alleging the unconstitutionality of the legislation that created the Justice Center for the Protection of People with Special Needs (JC). The motion also alleged the lack of consent by the District Attorney for the JC to prosecute the case. JC opposed the motion, and the attorney general intervened to address the constitutional aspects of the challenge. The court adopted the dissent’s position in People v. Davidson , 27 NY3d 1083 , that the statue could pass constitutional muster by reading it to require the DA to maintain ultimate prosecutorial responsibility for the prosecution of any case. The AG opined the statement by the ADA that it agreed for the JC to proceed with the criminal prosecution was inadequate to assure the court the DA retained ultimate prosecutorial authority herein. JC and DA both claimed they each had authority to prosecute. The court found there was no evidence the DA retained ultimate prosecutorial authority and responsibility in this case. As such, it found the JC did not have authority to prosecute this case, and it must be dismissed. Also, the matter may not be turned over to the DA to continue prosecution as there was no showing the JC was ever properly authorized to prosecute the case.