The People, Respondent,v.Martesha Davidson, Appellant.

Brief

N.Y.May 3, 2016

To be argued by: Robin A. Forshaw Time requested: 10 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MARTESHA DAVIDSON, Defendant-Appellant. APL-2015-00160 BRIEF FOR RESPONDENT PATRICIA GUNNING Special Prosecutor and Inspector General New York State Justice Center for the Protection of People with Special Needs 161 Delaware Avenue Delmar, New York 12054 Telephone: (518) 549-0200 Facsimile: (518) 549-0462 Robin A. Forshaw General Counsel Of Counsel Brief completed: October 27, 2015 1 TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 STATUTORY PROVISIONS AT ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 POINT ONE THE JUSTICE CENTER’S SPECIAL PROSECUTOR IS EMPOWERED TO PROSECUTE CRIMES INVOLVING THE ABUSE OR NEGLECT OF VULNERABLE PERSONS BY THEIR CAREGIVERS IN ANY COURT WITH CRIMINAL JURISDICTION IN THE STATE OF NEW YORK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 POINT TWO THE LEGISLATURE’S CREATION OF A SPECIAL PROSECUTOR WITHIN THE JUSTICE CENTER, WHO POSSESSES CONCURRENT AUTHORITY WITH DISTRICT ATTORNEYS, DOES NOT VIOLATE THE NEW YORK STATE CONSTITUTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 A. To the Extent that Defendant is Challenging the Constitutionality of the Justice Center’s Special Prosecutor, her Claim is not Properly Before this Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 B. The Legislature Acted Within its Recognized Authority in Creating a Special Prosecutor Within the Justice Center. . . . . . . . . . . . . . . . . . . . . . . . . . 18 C. The Creation of a Special Prosecutor Within the Justice Center did not Violate the Home Rule Provisions of the New York State Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 2 TABLE OF CASES AND AUTHORITIES Cases Colautti v. Franklin, 439 U.S. 379 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15 Della Pietra v. New York, 71 N.Y.2d 792 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Johnson v. Pataki, 91 N.Y.2d 214, 225 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 23-24 Overseas Education Ass’n v. Federal Labor Relations Authority, 876 F.2d 960 (D.C. Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 PBA of NY, Inc. v. City of NY, 97 N.Y.2d 378 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404 (2006) . . . . . . . . . . . . . . . . . . . . . . 18 People v. Cuttita, 7 N.Y.3d 500 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 People v. Czajka, 11 N.Y.2d 253 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 n.3 People v. Davidson, 98 N.Y.2d 738 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v. DeLeyden, 10 N.Y.2d 293 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 n.3 People v. Gilmour, 98 N.Y.2d 126 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-21, 21, 23 People v. Leombruno, 10 N.Y.2d 900 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 n.3 People v. Romero, 91 N.Y.2d 750 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Schildhaus, 4 N.Y.2d 883 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 n.3 People v. Soddano, 86 N.Y.2d 727 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 n.3 People v. Van Sickle, 13 N.Y.2d 61 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 n.3 Schall v. Martin, 467 U.S. 253 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Schumer v. Holtzman, 60 N.Y.2d 46 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Town of Islip v. Caviglia, 73 N.Y.2d 544 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19 United States v. Menasche, 348 U.S. 528 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3 TABLE OF CASES AND AUTHORITIES (Cont’d) Constitutional Provisions and Statutes NY Const., art. V, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 NY Const., art. V, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 NY Const., art. IX, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 NY Const., art. IX, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 NY Const., art. XIII, § 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Ch. 501, L. 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim County Law § 700 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 County Law § 701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CPL Article 690 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13-14 CPL § 1.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim CPL § 170.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 10 CPL § 690.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Executive Law Article 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Executive Law § 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23 Executive Law § 70-a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17, 22 Executive Law § 552 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Executive Law § 553 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 GBL § 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 GBL § 347 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 GBL § 358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 McKinney’s Statutes § 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4 TABLE OF CASES AND AUTHORITIES (Cont’d) McKinney’s Statutes § 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 McKinney’s Statutes § 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Penal Law § 240.26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Penal Law § 260.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Social Services Law Article 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 SSL § 488 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim SSL § 490 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 SSL § 491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 SSL § 493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 5 INTRODUCTION By certificate dated June 10, 2015, Defendant-Appellant (“defendant”) appeals from a March 10, 2015 decision and judgment of the County Court, Tompkins County, reinstating the criminal charges filed against her in the Lansing Town Court. Those charges were filed by the Justice Center’s Special Prosecutor, whose powers and duties are set forth in Executive Law § 552 and Criminal Procedure Law (“CPL”) § 1.20(32). Defendant moved to dismiss these charges, arguing that under the plain language of Executive Law § 552(2)(c), the Justice Center’s Special Prosecutor only had the authority to prosecute matters in the County and Supreme Courts (Appellant’s Appendix (“A.”) 11-12). Citing CPL § 170.30(1)(f), the Town Court (Howell, J.), granted defendant’s motion to dismiss on the sole ground raised by defendant – that Executive Law § 552(2)(c) created a “jurisdictional impediment” to prosecution of defendant in the Town Court. On the People’s appeal, the Tompkins County Court (Rowley, J.), reversed the decision of the Lansing Town Court and reinstated the charges. QUESTIONS PRESENTED 1. Do the legislative findings and the plain language of Article 20 of the Executive Law make it clear that the Special Prosecutor within the Justice Center for the Protection of People with Special Needs (“Justice Center”) has concurrent authority with District Attorneys to prosecute offenses involving the abuse or neglect of vulnerable persons by their caregivers? 2. Is the Legislature’s creation of a Special Prosecutor within the Justice Center consistent with the New York State Constitution? 3. Does this Court have jurisdiction to review defendant-appellant’s claim, raised for the first time in this Court, that the New York State Constitution compels the Court to find that the Justice Center’s Special Prosecutor does not have statutory authority to prosecute cases in Town and Village Courts? 6 STATUTORY PROVISIONS AT ISSUE In 2012, the Legislature enacted the Protection of People with Special Needs Act (“PPSNA”), which added Article 20 to the Executive Law and Article 11 to the Social Services Law (“SSL”). The stated purpose of the PPSNA was to create a set of uniform safeguards to bolster the protection of people with special needs in New York State. Ch. 501, L. 2012, Part A (Legislative Findings and purpose), p.2. Article 20 of the Executive Law sets forth the powers and duties of the Justice Center, a new agency within the Executive Department, whose “primary focus will be on the protection of vulnerable persons.” Ch. 501, L. 2012, Part A, p.2; Executive Law § 551. To fulfill this responsibility, the Justice Center maintains a hotline to which certain mandated reporters must report allegations of abuse or neglect of “vulnerable persons” by their caregivers. Executive Law § 553; SSL §§ 490, 491. The Justice Center is responsible for ensuring that those reports are investigated and that caregivers who are shown to have committed such abuse or neglect are held responsible, either through administrative actions or through the criminal courts. Executive Law § 552; SSL §§ 491, 493. To “bolster the ability of the state to respond more effectively to abuse and neglect of vulnerable persons, without creating additional burdens on local law enforcement, the justice center will have concurrent authority with district attorneys to prosecute abuse and neglect crimes committed against such persons.” Ch. 501, L. 2012, Part A, p.2. In order to achieve this purpose, the Legislature enacted Executive Law § 552, which creates a “Special Prosecutor and Inspector General” within the Justice Center. The Special Prosecutor is appointed by the Governor and has the duty and power: (i) to investigate and prosecute offenses involving abuse or neglect, as defined in subdivision eleven, of section four hundred eighty-eight of the social services law, committed against vulnerable persons by custodians as defined in subdivision two of section four hundred eighty-eight of the social services law; and (ii) to cooperate with and 7 assist district attorneys and local law enforcement officials in their efforts against such abuse or neglect of vulnerable persons. Executive Law § 552(2)(a). Under Executive Law § 552(2)(b), the Special Prosecutor is “empowered to apply for search warrants pursuant to article six hundred ninety of the criminal procedure law, and, except in exigent circumstances, shall give prior notice of the application to the district attorney of the county in which such a warrant is executed. . . .” Further, under Executive Law § 552(2)(c), the Special Prosecutor, or one of his or her assistants, may: after consultation with the district attorney as to the time and place of such attendance or appearance, attend in person any term of the county court or supreme court having appropriate jurisdiction, including an extraordinary special or trial term of the supreme court when one is appointed pursuant to section one hundred forty-nine of the judiciary law, or appear before the grand jury thereof, for the purpose of managing and conducing in such court or before such jury a criminal action or proceeding concerned with an offense where any conduct constituting or requisite to the completion of or in any manner related to such offense involved the abuse or neglect of a vulnerable person, as defined in subdivision eleven of section four hundred eighty-eight of the social services law. With respect to the Special Prosecutor’s jurisdiction, SSL § 488(11) defines a “vulnerable person” as someone who “due to physical or cognitive disabilities, or the need for services or placement, is receiving services from a facility or provider agency.” Caregivers who are subject to the Justice Center’s jurisdiction include “custodians,” defined to include “a director, operator, employee or volunteer of a facility or provider agency; or a consultant or an employee or volunteer of a corporation, partnership, organization or governmental entity which provides goods or services to a facility or provider agency pursuant to contract or other arrangement that permits such person to have regular and substantial contact with individuals who are cared for by the facility or provider agency.” Executive Law § 488(2). A “facility or provider agency” includes certain facilities and programs that provide services to vulnerable persons and that are operated, licensed or certified by any of six State agencies: the Office of Mental Health (“OMH”), the Office for People With Developmental Disabilities (“OPWDD”), the Office of 8 Alcoholism and Substance Abuse Services (“OASAS), the Office of Children and Family Services (“OCFS”), the Department of Health (“DOH”) and the State Education Department (“DOH”). Executive Law § 488(4). STATEMENT OF FACTS After an investigation into an allegation of abuse or neglect reported to the Justice Center’s hotline, the Justice Center’s Special Prosecutor charged Martesha Davidson with one count of Endangering the Welfare of a Child (Penal Law § 260.10(1)) and one count of Harassment in the Second Degree (Penal Law § 240.26(1)), arising from an incident alleged to have occurred on or about December 27, 2013, at the Finger Lakes Residential Center, in the Town of Lansing, County of Tompkins, State of New York. It was alleged that defendant, during the course of her employment at that facility, hit the then-14-year-old child, who was a resident of the facility, on his face with her hand, while holding keys, causing an injury to the victim (A. 16-19).1 On January 30, 2014, defendant was arrested at the Finger Lakes Residential Center. An Assistant Special Prosecutor from the Justice Center appeared on behalf of the People in Lansing Town Court before the Honorable John Howell to be heard in the matter (Respondent’s Appendix (“RA.”) 1-6). The Assistant Special Prosecutor provided the court and defendant with copies of the accusatory instrument (RA. 6). The court adjourned the case so that counsel could appear with defendant (RA. 7-8). On January 30, 2014, defendant’s counsel wrote a letter, which the Court deemed a Motion to Dismiss, requesting the dismissal of both charges pursuant to CPL § 170.30(1)(f), on 1 “A.” followed by a number refers to Appellant’s Appendix. 9 the grounds that the language of Executive Law § 552(2)(c) created a jurisdictional impediment to the authority of the Justice Center’s Special Prosecutor, or any of her assistants, to appear and prosecute offenses in a local criminal justice court (A. 11-12). The People filed a letter, deemed an Affirmation in Opposition to the defendant’s Motion to Dismiss, arguing, inter alia, that the Justice Center’s Special Prosecutor is, undisputedly, a District Attorney, as defined in CPL § 1.20(32), and that Executive Law § 552(2)(a) expressly empowered the Special Prosecutor with the authority to investigate and prosecute any and all offenses involving abuse or neglect of vulnerable persons, as defined in Social Services Law (“SSL”) § 488(11), in any court in the State of New York. Accordingly, the Special Prosecutor argued, she and her assistants had the authority to prosecute the charges against defendant before the Lansing Town Court (A. 13-15). On February 6, 2014, defendant’s counsel and an Assistant Special Prosecutor from the Justice Center appeared before the Honorable John Howell in Lansing Town Court (RA. 19-22). At that time, and prior to arraignment, defendant’s counsel objected on the record to the jurisdiction of the court in a prosecution brought by the New York State Justice Center (RA. 21- 22). Defendant’s counsel again argued that by statute the Justice Center may only appear before the County or Supreme Court (RA. 22). The Assistant Special Prosecutor explained that pursuant to Article 20 of the Executive Law, and an amendment made to the definition of a “district attorney,” the Justice Center’s Special Prosecutor and her assistants were now included in that definition and had the same authority as District Attorneys to prosecute charges such as those pending against defendant (RA. 23-24). Defendant’s counsel countered that rules of statutory construction provide that specific provisions trump general provisions, and the specific reference in one portion of the statute to 10 only County and Supreme Court precluded the more general and broader reading of the remainder of the statute (RA. 24-25). The Court acknowledged the letters filed on the issue and accepted the oral arguments, but admonished both parties that because defendant had not yet been arraigned, formal motions were premature (RA. 25-26). Through her attorney, defendant waived a reading of the charges, entered a plea of not guilty and requested a motion date (RA. 26). On February 24, 2014, the Honorable John Howell issued an abbreviated letter response, deemed a decision, dismissing all charges pending against defendant (A. 8-10). Because the February 24, 2014 decision did not state the statutory basis for the dismissal, the People requested that the Court issue and enter a formal written decision so that the propriety of a People’s appeal could be determined. By written decision rendered April 29, 2014, the Lansing Town Court held that Executive Law § 552(2)(c) is a jurisdictional impediment to the prosecution of the charges brought against defendant by the Justice Center’s Special Prosecutor, and, accordingly, granted defendant’s Motion to Dismiss pursuant to CPL § 170.30(1)(f) (A. 6- 7). On the People’s appeal, the Tompkins County Court reversed the Lansing Town Court’s decision (A. 3-5). The Court held that the Executive Law § 552(2)(c) did not create a limitation on the Special Prosecutor’s authority, but was an additional grant of authority permitting participation in and prosecution of felonies, and that the requirement that the Special Prosecutor consult with the District Attorney about time and place served only to “assure that the proceedings were conducted properly, particularly regarding the activities of the grand jury” (A. 4). 11 POINT ONE THE JUSTICE CENTER’S SPECIAL PROSECUTOR IS EMPOWERED TO PROSECUTE CRIMES INVOLVING THE ABUSE OR NEGLECT OF VULNERABLE PERSONS BY THEIR CAREGIVERS IN ANY COURT WITH CRIMINAL JURISDICTION IN THE STATE OF NEW YORK. Both the legislative findings in the PPSNA and the plain language of Executive Law § 552 and CPL § 1.20(32) explicitly provide that the Justice Center’s Special Prosecutor has concurrent authority with District Attorneys to prosecute offenses involving the abuse or neglect of vulnerable persons by their custodians. Such authority permits the Justice Center’s Special Prosecutor to prosecute offenses in any criminal court in the State, including in the Town and Village Courts. Nevertheless, defendant contends that because Executive Law § 552(2)(c) requires the Justice Center’s Special Prosecutor to consult with the District Attorney before appearing in Supreme Court or the Grand Jury, the Special Prosecutor may only exercise her prosecutorial authority in Supreme Court. But an examination of the structure of the statute as a whole, in conjunction with the clearly expressed legislative intent, repudiates this argument and demonstrates that the Justice Center’s Special Prosecutor has the authority to prosecute criminal charges against defendant in the Lansing Town Court. According to well-settled principles of statutory construction, interpretations of statutory language that contravene the clearly expressed legislative intent are improper. See McKinney’s Statutes § 75(a) (a “declaration in a statute at the time of its enactment that a certain meaning is its true meaning[] is binding on the courts and to such meaning all other parts of the statute must yield”); see also McKinney’s Statutes § 92 (“The primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature”). And it is axiomatic in rules of statutory construction that a statute should never be interpreted in such a 12 way as to render any portion of the statute meaningless, and that a statute whose meaning is plain on its face is not in need of judicial interpretation. See Colautti v. Franklin, 439 U.S. 379, 392 (1979), citing United States v. Menasche, 348 U.S. 528, 538-539 (1955). In fact, the “plain- meaning rule” states that when the intention of the legislature is so patently apparent, on the face of the statute, as to leave no question as to its meaning, the court need not apply canons of construction. Overseas Education Ass'n v. Federal Labor Relations Authority, 876 F.2d 960 (D.C. Cir. 1989); see McKinney’s Statutes § 76 (“Where words of a stature are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation.”). Applying these principles here, it is clear that the Justice Center’s Special Prosecutor has the power to prosecute cases in town and village courts. Part A of the PPSNA, which details the Legislative Findings and Purpose of the statutory scheme, explicitly states that: This legislation creates a set of uniform safeguards, to be implemented by a justice center whose primary focus will be on the protection of vulnerable persons. To bolster the ability of the state to respond more effectively to abuse and neglect of vulnerable persons, without creating additional burdens on local law enforcement, the justice center will have concurrent authority with district attorneys to prosecute abuse and neglect crimes committed against such persons. (Ch. 501, L. 2012, Part A, p.2) (emphasis added). The words “concurrent authority” can have but one meaning with respect to crimes involving abuse or neglect of vulnerable persons by their caregivers: if the District Attorney has the authority to prosecute a case in a town or village court, so does the Justice Center’s Special Prosecutor. In order to further implement this intent, the Legislature amended certain provisions of the Criminal Procedure Law and the Executive Law, and these amendments confirm that the Justice Center’s Special Prosecutor has the authority to prosecute defendant in the Town Court. 13 Most significantly, the Legislature amended the definition of a “District Attorney” in CPL § 1.20(32) to include “the special prosecutor and inspector general for the protection of people with special needs or his or her assistants when acting pursuant to their duties in matters arising under article twenty of the executive law.” In addition, Executive Law § 552(2)(a)(i) (contained in Article 20), in clear and unambiguous language, imparts the Special Prosecutor with the express power “to investigate and prosecute offenses involving abuse or neglect, as defined in subdivision eleven of section four hundred eighty-eight of the social services law, committed against vulnerable persons by custodians.” 2 These statutory amendments implement the clearly expressed legislative intent for the Justice Center’s Special Prosecutor to be vested with all the powers and privileges of a District Attorney, when the nature of a criminal case involves the abuse or neglect of a vulnerable person by his or her custodian. Further evidencing the legislative intent are new statutory provisions specifying that the authority of the Justice Center’s Special Prosecutor includes the power to apply for search warrants, Executive Law § 552(2)(b), and her ability to appear before a grand jury, Executive Law § 552(2)(c). Specifically, Executive Law § 552(2)(b) states: The special prosecutor is empowered to apply for search warrants pursuant to [CPL Article 690], and, except in exigent circumstances, shall give prior notice of the application to the district attorney of the county in which such a warrant is to be executed, and in such exigent circumstances shall give such notice as soon thereafter as is practicable; provided, however that the failure to give notice of a search warrant application to a district attorney shall not be a ground to suppress the evidence seized in executing the warrant. He or she may designate an assistant to exercise any of such powers. 2 SSL § 488(11) defines “abuse or neglect” as the conduct described in SSL § 488(1)(a) to (h), which defines seven types of abuse (physical abuse, sexual abuse, psychological abuse, deliberate inappropriate use of restraints, use of aversive conditioning, obstruction or reports of reportable incidents, unlawful use or administration of a controlled substance) and neglect. 14 While this language clearly establishes that the Special Prosecutor, like a District Attorney, has the authority to apply for search warrants by reference to Article 690 of the Criminal Procedure Law, the provision itself does not create that authority. The Justice Center’s Special Prosecutor’s power to apply for search warrants was granted when the Legislature amended the definition of a “district attorney” in CPL § 1.20(32) to include the Justice Center’s Special Prosecutor. That amendment permits the Special Prosecutor to act in accordance with CPL § 690.05(1), which permits a District Attorney to apply for a search warrant (see CPL § 690.05(1) (“Under circumstances prescribed in this article, a local criminal court may, upon application of a police officer, a district attorney or other public servant acting in the course of his official duties, issue a search warrant) (emphasis added)). This authority was mentioned again in Executive Law § 552(2)(b), not to create the authority in the first instance, but to ensure that, except in exigent circumstances, the Special Prosecutor gives notice of such an application to the local District Attorney. A similar notice requirement is contained in Executive Law § 552(2)(c), the provision upon which defendant relies in arguing that the Special Prosecutor does not have authority to prosecute her in a Town Court, but may only appear in Supreme Court, a County Court and before a grand jury. Upon examination of the structure of the statute as a whole, and in light of the clearly expressed legislative intent, this determination is plainly wrong. Executive Law § 552(2)(c) states: The special prosecutor or one of his or her assistants may, after consultation with the district attorney as to the time and place of such attendance or appearance, attend in person any term of the county court or supreme court having appropriate jurisdiction, including an extraordinary special or trial term of the supreme court when one is appointed pursuant to section one hundred forty-nine of the judiciary law, or appear before the grand jury thereof, for the purpose of managing and conducting in such court or before such jury a criminal action or proceeding concerned with an offense where 15 any conduct constituting or requisite to the completion of or in any other manner related to such offense involved the abuse or neglect of a vulnerable person, as defined in subdivision eleven of section four hundred eighty-eight of the social services law. In such case, such special prosecutor or his or her assistant so attending may exercise all the powers and perform all the duties in respect of such actions or proceedings which the district attorney would otherwise be authorized or required to exercise or perform. (emphasis added). The same way that Executive Law § 552(2)(b) does not create the authority of the Justice Center’s Special Prosecutor to apply for search warrants, Executive Law § 552(2)(c) does not itself create the authority for the Special Prosecutor to appear in certain courts. The Special Prosecutor already possesses the powers to appear in these courts and before grand juries, as well as in town and village courts, by virtue of her inclusion in the definition of a “District Attorney.” See County Law § 700(1) (“Except as provided in section seven hundred one of this chapter, it shall be the duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected or appointed . . . .”(emphasis added)). Accordingly, the only rational interpretation of this language is that it was meant to create a requirement that the Special Prosecutor “consult” with the local District Attorney prior to appearing in the Supreme Court, the County Court or a grand jury. Defendant’s interpretation of the statutory language as limiting the Special Prosecutor’s ability to appear in any other court but a “county court or supreme court” would wholly undermine the express statement by the Legislature that she shall have “concurrent authority with district attorneys” to prosecute abuse and neglect crimes committed against vulnerable persons. Such an interpretation, which would render a significant provision of the PPSNA meaningless, should be rejected. See Colautti v. Franklin, 439 U.S. at 392. 16 Moreover, defendant’s interpretation is not logical. First, if defendant is correct, in order to exercise her duty and power under Executive Law § 552(2)(a)(i) “to investigate and prosecute offenses involving abuse or neglect . . . committed against vulnerable persons by custodians,” without appearing in a local justice court, the Special Prosecutor would be compelled to present any case in which a defendant is alleged to have committed misdemeanor charges or violations to a grand jury. That the Legislature would contemplate such a scenario, and at the same time state that the Special Prosecutor’s authority is “concurrent” with that of District Attorneys, makes no sense. Second, it would be contrary to the expressed Legislative Purpose and Findings (Ch. 501, L. 2012, Part A). If one of the purposes of creating the Special Prosecutor is to bolster protections for vulnerable persons “without creating additional burdens on local law enforcement” (id.), requiring the Special Prosecutor to present misdemeanor charges to a grand jury would create additional burdens on local resources. Third, the language of Executive Law § 552(2)(c) provides that the purpose of such consultation is limited to the “time and place of such attendance or appearance.” It is not to obtain the District Attorney’s approval or consent to the Special Prosecutor’s prosecution, but merely to ensure that the District Attorney is aware that the Special Prosecutor will need to schedule a time and place to present evidence to a grand jury, when doing so is required by law. In short, Executive Law § 552(2)(c) empowers the Justice Center’s Special Prosecutor to convene a grand jury after consultation with the District Attorney concerning time and space, nothing more. Indeed, had the Legislature intended more, it could have done so by, for example, requiring the Special Prosecutor to obtain the approval of the District Attorney before exercising her prosecutorial authority, as is required by the Deputy Attorney General in Charge of the Organized Crime Task Force (“OCTF”). See Executive Law § 70-a(7) (requiring Deputy 17 Attorney General in Charge of the OCTF to obtain “approval” of both the Governor and the appropriate District Attorney before he or she may attend a term of the court). Accordingly, the Justice Center’s Special Prosecutor plainly acted within the scope of her statutory power in filing charges of Endangering the Welfare of a Child and second-degree harassment against defendant in the Lansing Town Court. As defendant implicitly concedes, both offenses constitute abuse or neglect as defined in SSL § 488(1), which was alleged to have been committed by a custodian as defined in SSL § 488(2). As a result, this prosecution comports, in all respects, with the Special Prosecutor’s enumerated duty and power “to investigate and prosecute offenses involving abuse or neglect” of vulnerable persons by their caregivers, as set forth in Executive Law § 552(2)(a)(i). POINT TWO THE LEGISLATURE’S CREATION OF A SPECIAL PROSECUTOR WITHIN THE JUSTICE CENTER, WHO POSSESSES CONCURRENT AUTHORITY WITH DISTRICT ATTORNEYS, DOES NOT VIOLATE THE NEW YORK STATE CONSTITUTION. The creation of a statutory Special Prosecutor in an executive agency is entirely consistent with the New York State Constitution. No constitutional or statutory provision mandates that a County District Attorney has the exclusive right to prosecute criminal matters in the County in which he or she is elected. To the contrary, the Legislature has granted statutory authority to prosecute criminal activity to both entities and persons who are not affiliated with a District Attorney, and this Court has routinely upheld the authority of others to prosecute criminal activity in certain circumstances. Nevertheless, defendant suggests that the New York Constitution forbids the delegation of prosecutorial authority to any person or entity other than a 18 County District Attorney or the Attorney General, either wholly or at least with respect to prosecutions, like hers, that are filed in a town or village court (Defendant’s Brief at 3-4). This argument is without merit. A. To the Extent that Defendant is Challenging the Constitutionality of the Justice Center’s Special Prosecutor, her Claim is not Properly Before this Court. Despite invoking principles of home rule, as well as the supposed constitutional authority to prosecute vested in the District Attorney and the Attorney General, defendant states that she is “not arguing that Article 20 of the Executive Law is unconstitutional” (Defendant’s Brief at 4). In fact, defendant cannot raise such a claim in this Court because she failed to raise it in her motion to dismiss in the Lansing Town Court. In her motion to dismiss the misdemeanor information, defendant relied solely on the language of Executive Law § 552(2)(c) in arguing that there was a “jurisdictional impediment to the Justice Center’s authority to prosecute her in the Lansing Town Court (A. 11-12, RA. 21-22). She did not suggest or argue that Executive Law 552’s creation of a Special Prosecutor was unconstitutional. Thus, any constitutional claim she is now making is not preserved and is not within the jurisdiction of this Court. See People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404 (2006)(constitutionality of statute not raised, issue held unpreserved); People v. Davidson, 98 N.Y.2d 738 (2002)(failure to raise constitutionality of statute in omnibus motion or on record rendered issue unpreserved). B. The Legislature Acted Within its Recognized Authority in Creating a Special Prosecutor Within the Justice Center. As an initial matter, acts of the Legislature enjoy a strong presumption of constitutionality, and must be upheld if there is a reasonable relationship between the end sought to be achieved and the means adopted to achieve it. See, e.g., Town of Islip v. Caviglia, 73 19 N.Y.2d 544, 550-551 (1989). In the legislation creating the Justice Center and authorizing the Justice Center’s Special Prosecutor to investigate and prosecute crimes committed against people with special needs, the Legislature stated that the purpose of the PPSNA was to strengthen and standardize the safety net for the more than 270,000 vulnerable persons receiving services from New York State human services agencies and programs. See Chap. 501, L 2012, Part A (Legislative Findings and Purpose). And it expressly stated the means that the Legislature was adopting to achieve that purpose: This legislation creates a set of uniform safeguards, to be implemented by a justice center whose primary focus will be on the protection of vulnerable persons. To bolster the ability of the state to respond more effectively to abuse and neglect of vulnerable persons, without creating additional burdens on local law enforcement, the justice center will have concurrent authority with district attorneys to prosecute abuse and neglect crimes committed against such persons (emphasis added). (Chap. 501, L. 2012, Part A, p.2). Because the creation of a special prosecutor, with the limited authority to prosecute abuse and neglect crimes committed against vulnerable persons, was a reasonable means to achieve the goal of strengthening the safety net for such persons, this Legislative enactment enjoys a strong presumption of constitutionality. Moreover, and despite defendant’s suggestion to the contrary, this Court has explicitly and repeatedly recognized that it is within the province of the Legislature to prescribe who – in addition to and other than a District Attorney – has the authority to prosecute criminal activity. As stated in Johnson v. Pataki, 91 N.Y.2d 214, 225 (1997), “[t]he Constitution provides for the offices of Governor, Attorney-General and District Attorneys, but it does not identify particular – let alone exclusive – prosecutorial duties or allocate the responsibility among them. Rather, the delineation of law enforcement functions has consistently been left to the Legislature.” See also People v. Gilmour, 98 N.Y.2d 126, 130 (2002) (“The New York State Constitution establishes 20 the offices of Attorney General (see NY Const., art. V, §§ 1, 4) and District Attorney (id. at art. XIII, § 13), but does not specify or allocate the powers of the respective offices.”); Schumer v. Holtzman, 60 N.Y.2d 46, 53 (1983) (“The powers of the District Attorney . . . are conferred upon her by statute.”). The Legislature has adopted a number of statutory provisions, including the one at issue in this case, to empower non-District Attorneys with prosecutorial authority. Thus, although County Law § 700 states that the District Attorney has the duty to conduct “all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected or appointed,” the Legislature has enacted statutes that either restrict that prosecutorial authority or grant concurrent authority to prosecute to non-District Attorneys. For example, County Law § 701(1) authorizes a superior court in the county to replace the District Attorney when he or she either is “not [] in attendance at a term of any court of record, which he or she is by law required to attend,” or is “disqualified from acting in a particular case to discharge his or her duties . . . .” In this situation, the court must appoint either: an attorney having an office in or practicing in the county; or a district attorney from an adjoining county or from another county within the same judicial department. County Law § 701(2). Significantly, in this situation, the court may not appoint the Attorney General as the prosecutor, which would be expected if defendant were correct in suggesting that in order to protect defendants from the “caprice and zealotry” of a non-elected prosecutor, District Attorneys and the Attorney General should be the only authorized prosecutorial entities in New York (Defendant’s Brief at 4). Moreover, in suggesting that it is impermissible for the Legislature to allow anyone other than the Attorney General to act as a special prosecutor, 21 defendant relies heavily on the fact that the Attorney General “existed before the district attorney and retained the power to prosecute state crimes” (Defendant’s Brief at 4). This Court has, however, expressly held to the contrary. In People v. Gilmour, 98 N.Y.2d at 131, the Court held that the Attorney General has not, in fact, retained any inherent prosecutorial authority by virtue of his or her historic prosecutorial authority. Quoting People v. Romero, 91 N.Y.2d 750, 754 (1998), and Della Pietra v. New York, 71 N.Y.2d 792, 797 (1988), the Court stated: Indeed, this Court has pointed out that “the Attorney-General has no . . . general authority [to conduct prosecutions] and is ‘without any prosecutorial power except when specifically authorized by statute.’” Gilmour, 98 N.Y.2d at 131 (emphasis omitted). In recognition of its power to prescribe who may prosecute criminal activity in particular circumstances, the Legislature has granted the Attorney General original jurisdiction to prosecute certain types of criminal activity. For instance, the Legislature has granted the Attorney General concurrent authority with District Attorneys to prosecute criminal activity under the Martin Act (General Business Law (“GBL”) § 358 (securities fraud)) and the Donnelly Act (GBL § 347 (antitrust violations)), without obtaining permission of or approval by any court or governmental official. And the Legislature has given the Attorney General exclusive authority to prosecute violations of Article V of the General Business Law. See GBL § 85 (“Criminal action for violation of this article shall be prosecuted by the attorney-general, or his deputy, in the name of the people of the state, and in any such prosecution the attorney-general, or his deputy, shall exercise all the powers and perform all duties which the district attorney would otherwise be authorized to exercise or to perform therein.”). The Legislature also has authorized the creation of the OCTF within the Attorney General’s Office, headed by a Deputy Attorney General in Charge who, like the Justice Center’s 22 Special Prosecutor, is a District Attorney. See CPL § 1.20(32) ("District attorney" means a district attorney . . . and, where appropriate, the attorney general, an assistant attorney general, a deputy attorney general, a special deputy attorney general, or the special prosecutor and inspector general for the protection of people with special needs or his or her assistants when acting pursuant to their duties in matters arising under article twenty of the executive law”); Executive Law § 70-a. Significantly, the Deputy Attorney General in Charge of the OCTF is appointed jointly by the Governor and the Attorney General (Executive Law § 70-a(2)), and he or she may only appear in a county court or supreme court or attend a grand jury “[w]ith the approval of the governor and with the approval or upon the request of the appropriate district attorney.” Executive Law § 70-a(7). This strict statutory framework is further confirmation of the principle that this Court has repeatedly recognized – that it is the province of the Legislature to establish the appropriate person or entity with the authority to prosecute particular criminal activity. See, e.g., Schumer v. Holtzman, 60 N.Y.2d at 53. The Legislature also has explicitly recognized that the Governor, and agencies under the Governor’s control, may appropriately play a role in the exercise of prosecutorial authority. As noted above, the Governor and the Attorney General have a joint responsibility to appoint the Deputy Attorney General in Charge of the OCTF. Executive Law § 70-a(2). The Governor also may empower the Attorney General to act as a Special Prosecutor on a specifically enumerated matter, Executive Law § 63(3), or to supersede a District Attorney in a particular matter. Executive Law § 63(2). Indeed, the Legislature has even given the head of a State agency authority to activate the Attorney General’s prosecutorial authority over a matter of concern to that agency head. See Executive Law § 63(3) (authorizing Governor and the head of any department, authority, division or agency of the state to request the Attorney General to 23 investigate and prosecute “the alleged commission of any indictable offense or offenses in violation of the law which the officer making the request is especially required to execute or in relation to any matters connected with such department”). Given all of these statutory delegations of prosecutorial authority to non-District Attorneys, the Legislature’s delegation of prosecutorial authority to a Special Prosecutor, with the mandate to focus exclusively on the critically important area of crimes against vulnerable persons who are victims of abuse and neglect, was a reasonable and constitutional exercise of legislative authority. Indeed, the statutory structure created by the Legislature contains a number of aspects of the other grants of prosecutorial authority discussed above. Like the Deputy Attorney General in Charge of the OCTF, the Justice Center’s Special Prosecutor is appointed by the Governor (without the need for approval of the Attorney General), and is explicitly included in the definition of a District Attorney in CPL § 1.20(32). Moreover, the fact that the Legislature chose to create the Special Prosecutor in a State agency is not dissimilar to its determination, in Executive Law § 63(3), to permit the Governor or a head of a State agency to activate the prosecutorial authority of the Attorney General. Finally, neither the Constitution nor any other established principle prevented the Legislature from establishing this Special Prosecutor in the Justice Center, as opposed to in the Attorney General’s Office. This Court has recognized that the Attorney General no longer possesses any latent prosecutorial authority based on his or her historical prosecutorial authority, and that he or she “now has no power to prosecute crimes unless specifically permitted by law.” People v. Cuttita, 7 N.Y.3d 500, 507 (2006). So, too, the District Attorney’s authority to prosecute is solely governed by legislative enactment. People v. Gilmour, 98 N.Y.2d at 130-132. Indeed, as this Court stated in Johnson v. Pataki, 91 N.Y.2d at 225, “the delineation of law 24 enforcement functions has consistently been left to the Legislature.”3 Accordingly, when the Legislature decided to “bolster the ability of the state to respond more effectively to abuse and neglect of vulnerable persons, without creating additional burdens on local law enforcement” (Ch. 501, L. 2012, Part A, p.2), it acted within its power when it vested the Justice Center’s Special Prosecutor with this authority. C. The Creation of a Special Prosecutor Within the Justice Center did not Violate the Home Rule Provisions of the New York State Constitution. Contrary to defendant’s claim, the Legislature’s creation of the Justice Center’s Special Prosecutor did not violate the home rule provisions of the New York Constitution. Article IX, § 2 of the New York Constitution grants the Legislature the authority to enact a “general law” relating to the property, affairs or government of local governments. A general law is defined as a “law which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages.” N.Y. Const., art. IX, § 3(d)(1). A “special law,” by contrast, is defined as a “law which in terms and in effect applies to one or more, but not all, counties, counties other than those wholly included within a city, cities, towns or villages.” N.Y. Const,. art. IX, § 3(d)(4). Under Article IX, § 2(b)(2), a special law relating to the property, affairs or government of any local government may not be enacted without a “home rule message” from the locality or the localities affected by the law. However, the 3 Indeed, there is nothing sacrosanct about the roles of either the District Attorney or the Attorney General with respect to prosecutorial authority in this State. This Court has upheld the authority of state troopers, deputy sheriffs and a deputy town attorney to prosecute speeding tickets and traffic offenses, People v. Soddano, 86 N.Y.2d 727 (1995), People v. DeLeyden, 10 N.Y.2d 293, 294 (1961), People v. Czajka, 11 N.Y.2d 253, 254 (1962), and of a complaining witness to prosecute an assault charge, People v. Van Sickle, 13 N.Y.2d 61 (1963). See also People v. Leombruno, 10 N.Y.2d 900 (1961) (upholding prosecution by a Village Attorney); People v. Schildhaus, 4 N.Y.2d 883 (1958) (upholding prosecution by Assistant Corporation Counsel). 25 Legislature may enact a general law or a “special law [that] serves a substantial State concern,” without a home rule message. PBA of NY, Inc. v. City of NY, 97 N.Y.2d 378, 386 (2001). Principles of home rule are not impacted by the Legislature’s creation of the Justice Center’s Special Prosecutor. First, the PPSNA, which created the Special Prosecutor, was a general law affecting every county and, specifically, every county District Attorney’s Office. Second, even if this were a special law, the Legislature made it clear that it was acting on this matter to serve a substantial State concern – to “bolster the ability of the state to respond more effectively to abuse and neglect of vulnerable persons.” Ch. 501, L. 2012, Part A, p.2. And there can be no doubt that protecting vulnerable persons from such abuse and neglect is a legitimate matter of State concern. Indeed, the PPSNA carefully defined the Special Prosecutor’s authority to matters of statewide concern. Her authority is expressly limited to investigating and prosecuting only those cases involving the abuse or neglect of vulnerable persons who are receiving services from facilities and provider agencies that are operated, licensed or certified by one of six State agencies – the Office of Mental Health, the Office for People With Developmental Disabilities, the Office of Alcoholism and Substance Abuse Services, the Office of Children and Family Services, the Department of Health and the State Education Department. See Executive Law § 552(2)(a); Social Services Law § 488(2), (4), (14). More generally, it has been recognized that the State has a “legitimate and compelling” interest in protecting communities from crime. Schall v. Martin, 467 U.S. 253, 264 (1984). * * * For all these reasons, there is no merit to defendant’s suggestions that any analysis of the Special Prosecutor’s jurisdiction must be informed by any constitutional principles or any statutory authority vested in District Attorneys or the Attorney General. To the contrary, in its 26 effort to standardize and bolster the safety net for vulnerable persons receiving services from New York’s human services agencies and programs, the Legislature wisely and rationally created a Special Prosecutor within the Justice Center, an agency whose primary focus is on the protection of people with special needs. This decision to vest the Justice Center’s Special Prosecutor with this authority was well within the Legislature’s power, and there is no basis for this Court to find that this exercise of legislative authority was in any way improper or unconstitutional. CONCLUSION For all the foregoing reasons, this Court should affirm the decision of the Tompkins County Court reinstating the criminal charges filed against defendant in the Lansing Town Court. Dated: Delmar, New York October 27, 2015 Respectfully submitted, _______________________ ROBIN A. FORSHAW Of Counsel to PATRICIA GUNNING Special Prosecutor and Inspector General New York State Justice Center for the Protection of People with Special Needs