This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 86
The People &c.,
            Respondent,
        v.
Martesha Davidson,
            Appellant.




          Robert R. LaLonde, for appellant.
          Robin A. Forshaw, for respondent.
          Barbara D. Underwood, for amicus curiae Attorney
General of the State of New York.




MEMORANDUM:
          The order of County Court should be affirmed.
          In 2012, the legislature enacted article 20 of the
Executive Law as part of the "Protection of People with Special
Needs Act" to protect those "who are vulnerable because of their
reliance on professional caregivers to help them overcome

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                              - 2 -                           No. 86

physical, cognitive and other challenges" (L 2012, ch 501).
Specifically, the enactment calls for the creation of a "justice
center" -- the primary purpose of which is to protect "vulnerable
persons" as defined in Executive Law § 550 (5).   The center was
granted "concurrent authority with district attorneys to
prosecute abuse and neglect crimes committed against [vulnerable]
persons," thereby bolstering the state's ability to respond to
such crimes "without creating additional burdens on law
enforcement" (id.).
          In carrying out that task, Executive Law § 552 (2) (a)
mandates that the justice center "employ a special prosecutor"
who has
          "the duty and power: (i) to investigate and
          prosecute offenses involving abuse or neglect
          ...; and (ii) to cooperate with and assist
          district attorneys and other local law
          enforcement officials in their efforts
          against such abuse or neglect of vulnerable
          persons ..."
Pursuant to that law, the special prosecutor
          "may, after consultation with the district
          attorney ... 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 ... 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 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 ... In such case, such
          special prosecutor ... may exercise all the
          powers and perform all the duties in respect

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                               - 3 -                         No. 86

          of such actions or proceedings which the
          district attorney would otherwise be
          authorized or required to exercise or
          perform" (Executive Law § 552 [2] [c]).
          Defendant, an employee of the Finger Lakes Residential
Center, was charged in Town Court with endangering the welfare of
a child (Penal Law § 260.10 [1]) and harassment in the second
degree (Penal Law § 240.26), arising from an incident that
allegedly occurred at the center between defendant and a 14-year-
old resident.   Defendant moved to dismiss the misdemeanor
information pursuant to CPL 170.30 (1) (f) on the grounds that
the special prosecutor did not have the authority to prosecute
offenses in local criminal courts and that such authority was
limited to prosecuting abuse and neglect cases in County and
Supreme Court as evidenced by Executive Law § 552 (2) (c).   Town
Court agreed, holding that the language of section 552 (2) (c)
served as a jurisdictional impediment to the special prosecutor's
ability to appear and prosecute abuse and neglect cases in local
criminal courts.
          On appeal, County Court reversed and remanded to Town
Court for further proceedings, holding that rather than limiting
the special prosecutor's power, section 552 (2) (c)
constituted "an additional grant of authority permitting
participation in and prosecution of felonies before the grand
jury and the appropriate superior court."   County Court did not
address defendant's constitutional argument since it had not been
raised before Town Court and therefore not preserved for

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appellate review; nor did it reach defendant's further contention
that the special prosecutor's failure to consult with the
district attorney's office before appearing in local criminal
court was a fatal flaw mandating dismissal of the charges.    In
light of this, this Court's review is limited solely to the
question whether Executive Law § 552 (2) (c) prohibits the
special prosecutor from prosecuting abuse and neglect cases in
local criminal courts.
          County Court's order should be affirmed.   There is no
indication from the statute that the special prosecutor's powers
are limited by section 552 (2) (c).   That section merely sets
forth the requirement that the special prosecutor consult with
the district attorney of the pertinent county should the special
prosecutor wish to appear in County Court or Supreme Court, or
before the grand jury, for the purposes of managing or conducting
before such court or grand jury a criminal action or proceeding
involving the abuse or neglect of a vulnerable person.   There is
no indication that the statute governs proceedings in local
courts at all.1




     1
        The dissent addresses issues that are not before us and
we do not consider them given the procedural posture of the case.

                              - 4 -
People v Martesha Davidson
No. 86




Rivera, J.(dissenting):
               In this case the Court must determine the powers
of the Special Prosecutor for the Protection of People with
Special Needs, including whether they have full and complete
prosecutorial authority independent from the District Attorney.
Defendant claims that Special Prosecutors have no authority under
Executive Law section 552 (2) (c) to initiate or pursue a
criminal proceeding against her in Town Court because that
provision only allows the Special Prosecutor to appear before
County and Supreme Court and a grand jury.   Defendant further
argues that an unelected Special Prosecutor may not be appointed
to appear in a criminal matter without input from the District
Attorney, who in her case declined to prosecute, thus foreclosing
any action by the Special Prosecutor here.   As a matter of law, I
agree with the majority that defendant reads into section 552 (2)
(c) a proscription on the Special Prosecutor’s authority and Town
Court’s jurisdiction which is unsupported by the statutory text.
However, I disagree that an affirmance is appropriate in this
case.
          The Legislature may not transfer or diminish the core


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                              - 2 -                           No. 86

responsibilities and prosecutorial powers of a constitutionally
elected officer, such as a District Attorney, through appointment
of an unelected official (see People ex rel. Wogan v Rafferty,
208 NY 451, 456 [1913]; see also NY Const. art. 5, § 1 [the
"attorney-general shall be chosen at the . . . general
election"]; NY Const. art. 13, § 13 ["In each county a district
attorney shall be chosen by the electors once in every three or
four years as the legislature shall direct"]).   The District
Attorney has the ultimate responsibility for prosecuting crimes
and offenses (People v Soddano, 86 NY2d 727, 728 [1995]), and the
sole discretion to conduct all phases of criminal prosecutions
(Matter of Soares v Carter, 25 NY3d 1011, 1013 [2015]).
          Thus, where the Legislature creates the office of an
appointed special prosecutor for criminal matters involving the
safety of a statutorily classified population dependent on state
services, and also prohibits interference with the investigatory
and prosecutorial duties of the District Attorney, such special
prosecutor may only appear in accordance with the authorizing
statute, upon consent of the local District Attorney.    The record
before us is unclear on whether such consent was obtained, and
therefore the matter should be remitted for further proceedings
to resolve this issue.


                               I.
          The Legislature enacted the Protection of People with


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                                 - 3 -                        No. 86

Special Needs Act ("Act") “to strengthen and standardize[] the
safety net for vulnerable persons, adults and children alike, who
are receiving care from New York’s human service agencies and
programs . . . [due to] disabilities or other life circumstances”
(Legislative Findings, Protection of People With Special Needs
Act, Ch. 501, L. 2012 Part A).    The Act “creates a set of uniform
safeguards to be implemented by a justice center whose primary
focus will be on the protection of vulnerable persons” (id.).
The Legislature intended that “the justice center will have
concurrent authority with district attorneys to prosecute abuse
and neglect crimes committed against such persons” in order "[t]o
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" (id.).
          Pursuant to the statutory design, the Justice Center is
housed within the Executive branch, and headed by an executive
director appointed by the Governor, by and with the advice and
consent of the Senate (Executive Law § 551 [1]).   In furtherance
of the legislative purpose to provide additional resources to
stem abuse and neglect crimes, the Act mandates the formation of
a prosecution unit within the Justice Center, and that the
Justice Center employ "a special prosecutor and inspector
general" (Executive Law § 552 [2] [a]).   These prosecutorial
staff members are unelected officials appointed by the Governor,
without Senate approval (id.).


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                              - 4 -                           No. 86

          In section 552 (2) (a) the Act provides that the
Special Prosecutor has "the duty and power: (i) to investigate
and prosecute offenses involving abuse or neglect . . . committed
against vulnerable persons by custodians . . . and (ii) to
cooperate with and assist district attorneys and other local law
enforcement officials in their efforts against such abuse or
neglect of vulnerable persons" (Executive Law § 552 [2] [a]).
This grant of power is subordinate to the existing authority of
District Attorneys, and is explicitly limited by the legislative
mandate that “nothing herein shall interfere with the ability of
district attorneys at any time to receive complaints, [and]
investigate and prosecute any suspected abuse or neglect" (id.).
          In the same vein, in accordance with section 552 (2)
(b) the Special Prosecutor must give prior notice to the local
District Attorney before applying for a search warrant, except in
exigent circumstances, in which case notice must be provided “as
soon thereafter as is practicable" (Executive Law § 552 [2] [b]).
Most significantly, under section 552 (2) (c) the Special
Prosecutor "[may] attend in person any term of the county court
or supreme court having appropriate jurisdiction . . . or appear
before the grand jury thereof, for the purpose of [conducting] a
criminal action or proceeding" for any action related to an
offense that involved the abuse or neglect of a vulnerable
person, only "after consultation with the district attorney as to
the time and place of such attendance or appearance" (Executive


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                               - 5 -                         No. 86

Law § 552 [2] [c]).   Thus, contrary to defendant's argument,
under the Act there is no wholesale prohibition on the Special
Prosecutor’s authority to pursue criminal matters in Town Court.
Further, and apart from the lack of textual support for
defendant's argument, her construction of § 552 (2) (c) would
undermine the legislative criminal justice goal of providing
greater human and programmatic resources as a means to enhance
prosecutions across the state, without the added burden on local
law enforcement (see Legislative Findings, Ch. 501, L. 2012 Part
A).   However, while I therefore agree with the majority's
conclusion that a Special Prosecutor may appear and pursue
criminal matters in Town Court this does not end our inquiry.1


      1
       The majority reaches its conclusion notwithstanding that,
according to my colleagues, "[t]here is no indication that the
statute governs proceedings in local courts at all" (majority
op., at 4). This suggested possible alterative ground for the
Special Prosecutor's authority ignores the text and intent of the
Act, which is to increase resources to enhance prosecution of
abuse and neglect crimes by empowering the Special Prosecutor to
investigate and prosecute these matters (see Executive Law § 552
[2] [a] ["such special prosecutor shall have the duty and power .
. . to investigate and prosecute offenses involving abuse or
neglect . . . committed against vulnerable persons . . . and []
to cooperate with and assist district attorneys and other local
law enforcement officials"; see also Legislative Findings,
Protection of People With Special Needs Act, Ch. 501, L. 2012
Part A [The Act "creates a set of uniform safeguards, to be
implemented by a justice center whose primary focus will be on
the protection of vulnerable persons"]). Moreover, the
comprehensive scope of Justice Center's authority on matters
involving the population affected by the Act belies the narrow
interpretation suggested by the majority (see Legislative
Findings, Ch. 501, L. 2012 Part A [The Justice Center "[t]o
bolster the ability of the state to respond more effectively to

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                                 - 6 -                       No. 86

Defendant's arguments about the role of Special Prosecutors under
the Act necessitates this Court determine the scope of their
power.


                                  II.
                                  A.
          Resolution of defendant’s appeal requires this Court to
further consider the knotty question of whether the Legislature
may create an unelected, Governor-appointed Special Prosecutor,
independent of the local District Attorney.    Defendant originally
raised this issue when she claimed, during her initial argument
to Town Court, that "[u]nder the New York State Constitution the
only entity with the authority to prosecute criminal matters is
the county district attorney."    Defendant continues to assert
that where neither the District Attorney nor Attorney General is
the appointed Special Prosecutor, appointment of any other person


abuse and neglect of vulnerable persons, without creating
additional burdens on local law enforcement, the justice center
will have concurrent authority with district attorneys"]).
     Of course, if the majority were correct, the Act would still
be interpreted to require consent from the District Attorney.
This Court has expressly held that while a District Attorney can
delegate the prosecution of petty crimes or offenses the District
Attorney "must retain the ultimate, nondelegable responsibility
for prosecuting" such crimes (see Soddano, 86 NY2d at 728).
Thus, if the Act did not apply to Town Court then the District
Attorney retained all prosecutorial authority with regard to that
court. Consequently, the Justice Center Special Prosecutor could
only prosecute an individual in Town Court with the consent of
the District Attorney. Consent which is not evidenced from the
face of the record.

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                               - 7 -                          No. 86

is unlawful absent input from the local District Attorney, who
serves as the elected prosecutor for the County, in accordance
with County Law 700 (1) and the State Constitution, Article XIII,
section 13.   She distinguishes her case from one involving
appointment of the Attorney General because, unlike the Special
Prosecutor created by the Act, the Attorney General is an elected
official who historically had a measure of prosecutorial
authority independent of local prosecutors, and thus such
appointment avoided conflict with local home rule.    To be clear,
defendant does not argue that the Act is unconstitutional, only
that our legal system abhors unchecked prosecutorial authority,
and in order to protect the population from the caprice and
zealotry of an unelected Special Prosecutor there must be
prescriptions on unbridled power.2
          The Attorney General, appearing as amicus curiae, goes
further, and argues, as a constitutional matter, that the Special
Prosecutor may proceed with defendant’s prosecution only with the
local District Attorney’s consent.3    According to the Attorney


     2
       Regardless of whether defendant now chooses to focus her
argument on the statutory text of the Act she specially asserted
in her appeal to County Court that the Act is unconstitutional.
Moreover, for the reasons I discuss we are squarely presented
with questions related to the authority of the Special Prosecutor
as it impacts on the constitutional nondelegable powers of
District Attorneys.
     3
       In the courts below, defendant failed to notify the
Attorney General that she was asserting a constitutional
challenge to the Act, as required by Executive Law § 71 (1), and

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                               - 8 -                          No. 86

General, the Legislature may not transfer the essential
prosecutorial function of an elected constitutional officer to
persons selected by appointment.   Further, given that the
District Attorney has the ultimate responsibility for whether and
who to prosecute, those powers cannot be diminished by assignment
to the Special Prosecutor.   Nevertheless, the Attorney General
argues that the Act may be construed to preserve the District
Attorney’s constitutional power if we interpret the Act's
language and purpose to require consent.
          In response, the Justice Center claims it has complete
independence from the District Attorney, and may prosecute at
will, based on the Legislature's intent that Special Prosecutors
have concurrent authority with the District Attorney, and the
Act's specific grant of power to investigate and prosecute.    The
Justice Center notes that the Legislature's choice to amend CPL
1.20 (32) to include the Special Prosecutor within the definition
of District Attorney is further evidence of the intent to place
the Special Prosecutor on par with the County District Attorneys.4



neither Town nor County Court ordered such notice. However, on
appeal to this Court, the Attorney General became aware of this
matter without the statutory notification, and appears as amicus
in accordance with part 500.12 of our rules (see Rules of
Practice for the Court of Appeals, 22 NYCRR Part 500.12 [e]).
     4
       In the alternative, the Justice Center agrees that any
constitutional impediment to the exercise of prosecutorial
authority may be resolved by authorizing the Special Prosecutor
to act with the consent of the local District Attorney.

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                                - 9 -                         No. 86

The Justice Center specifically argues that it is the Legislature
which determines the authority of District Attorneys and may
appoint non-District Attorneys to prosecute, including non-
elected officials, and has done so in the past.
          The Justice Center's arguments are unpersuasive.
Applicable state constitutional provisions and our case law
explaining the historical prosecutorial authority of the District
Attorney and Attorney General do not support the sweeping
independent power advocated by the Justice Center.    Indeed, if
the Act were construed to permit the gubernatorial appointment of
a nonelected special prosecutor, independent of the District
Attorneys and with unfettered prosecutorial power, such
legislative delegation would be unconstitutional.


                                  B.
          “Where the Constitution establishes a specified office,
or recognizes its existence, and prescribes the manner in which
it shall be filled, the legislature may not transfer any
essential function of the office to a different officer chosen in
a different manner" (Wogan v Rafferty, 208 NY 451, 456 [1913]
[internal citation omitted]).   Notwithstanding legislative
regulation over some aspect of the duties of constitutional
officers, the Legislature cannot “depriv[e] them of a substantial
attribute of the office” (id.).    To permit such a trespass would
sanction an inherently unconstitutional act because

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                              - 10 -                          No. 86

           “[w]hen the legislature . . . assumes the
           power to take from a constitutional officer
           the substance of the office itself, and to
           transfer it to another who is to be appointed
           in a different manner and to hold the office
           by a different tenure than that which was
           provided for by the Constitution, it is not a
           legitimate exercise of the right to regulate
           the duties or emoluments of the office, but
           an infringement upon the constitutional mode
           of appointment”
(id. at 456-57 [internal quotations omitted]; see also Haggerty v
City of New York, 267 NY 252, 258 [1935] [legislature could
control and limit salaries of a municipal court because it was
not, and did not have all the powers of, a constitutional
court]).
            The District Attorney and Attorney General are
constitutional officers, chosen by election (see NY Const. art.
5, § 1; art. 13, § 13)   The Constitution is silent as to their
duties, and “does not specify or allocate the powers of the
respective offices” (People v Gilmour, 98 NY2d 126, 130 [2002]),
although it designates the District Attorney as a law enforcement
officer (NY. Const. art. 13, § 13).    However, this Court has
recognized the essential powers of the District Attorney and
Attorney General, based on their respective prosecutorial roles
(Gilmour, 98 NY2d at 130-133).
           Historically, both the District Attorney and Attorney
General were responsible for the prosecution of crimes in New
York State (id. at 130).   While the Attorney General’s original
exclusive general prosecutorial authority no longer exists, it

                              - 10 -
                              - 11 -                          No. 86

has instead given way to specific statutory authorizations (id.
at 131).   For example, the Attorney General has power to
prosecute under Executive Law § 63 and General Business Law §§
347, 358 (see Executive Law § 63 [2]-[3] [allowing the attorney
general to assume prosecutorial responsibly for local crimes at
the request of the governor]; GBL § 347 [authority to prosecute
certain civil crimes]; GBL § 358 [authority to prosecute
securities fraud]).   In contrast, under County Law § 700 (1)
District Attorneys are authorized to prosecute “crimes and
offenses cognizable by the courts of the count[ies] [sic]”
(Gilmour, 98 NY2d at 127).
           The Court has time and again defined the essential
characteristic of the District Attorney’s prosecutorial authority
as the "discretionary power to determine whom, whether and how to
prosecute" (Matter of Haggerty v Himelein, 89 NY2d 431, 436
[1997], quoting Matter of Schumer v Holtzman, 60 NY2d 46, 52
[1983]).   The Court explained in Schumer that while, for example,
a District Attorney may "delegate duties to her assistants . . .
she may not transfer the fundamental responsibilities of the
office to them" (60 NY2d at 53 [emphasis added]).   The Court
stated in Haggerty that "the essence of a District Attorney's
constitutional, statutory and common-law prosecutorial authority
is the discretionary power to determine whom, whether and how to
prosecute [a criminal] matter, the responsibility and
accountability for which is not freely transferable to anyone

                              - 11 -
                              - 12 -                          No. 86

else" (89 NY2d at 436 [internal quotation and citation omitted]).
We recently reaffirmed that the “authority to compel the
prosecution of criminal actions . . . is solely within the broad
authority of the district attorney's executive power to conduct
all phases of criminal prosecution" (Soares, 25 NY3d at 1014).
           This Court's decision in Soddano does not put in
question this fundamental understanding of the prosecutorial
function of the District Attorney.     In Soddano, the Court held
that County Law § 701 (1) did not require the personal presence
of the local District Attorney at every hearing in the County,
and, concluded in accordance with a prior line of cases that "the
prosecution of petty crimes or offenses may be delegated to
subordinates and other public or administrative officers and even
to private attorneys" (86 NY2d at 728 citing People v DeLeyden,
10 NY2d 293, 294 [1961]; People v Czajka, 11 NY2d 253, 254
[1962]).   Nevertheless, District Attorneys "retain the ultimate,
nondelegable responsibility for prosecuting all crimes and
offenses" and may allow others to appear on their behalf only "so
long as they are kept aware of all the criminal prosecutions in
the county" (id.).   Thus, while County Law § 701 (1) and this
Court's case law allow for ad hoc prosecutions by non-district
attorneys, our precedent and this state's constitutional
principles do not allow the Legislature to create a standing
office empowered to handle a category of designated criminal
matters related to the safety of a targeted class of persons, as

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                             - 13 -                            No. 86

is the case with the Special Prosecutor.   Further, the Justice
Center's prosecutors do not have independent prosecutorial
authority because under Soddano delegation is permissible only
when the District Attorney retains final authority and ultimate
responsibility.
          Our jurisprudence leads to the conclusion that the
Legislature may choose to allocate law enforcement powers among
constitutional officers, and may permit non-district attorneys to
prosecute certain offenses, but it cannot diminish the essential
discretionary prosecutorial power, which we have defined as the
choice whether and who to prosecute.   In cases of statutory
appointments, other than in cases involving the Attorney General,
the District Attorney must retain ultimate responsibility for the
prosecution.
          When interpreting statutes we must make every effort to
do so in a manner that avoids a constitutional conflict (Lorie C.
v St. Lawrence County Dept. of Social Services, 49 NY2d 161, 171
[1980]; Rector, Church Wardens and Vestrymen of St. Bartholomew's
Church in City of New York v Comm. to Preserve St. Bartholomew's
Church, Inc., 84 AD2d 309, 316 [1st Dept 1982]).   We can do so in
this case because the Act provides significant limitations on the
power of the Special Prosecutor, and requires that the Special
Prosecutor exercise authority in cases where the District
Attorney's powers are neither impeded nor undermined.   Contrary
to the Justice Center's view, the Special Prosecutor is not on

                             - 13 -
                               - 14 -                            No. 86

equal footing with the local District Attorney.
            First, the Act provides that "nothing herein shall
interfere with the ability of the district attorneys at any time
to receive complaints, investigate and prosecute any suspected
abuse or neglect" (Executive Law § 552 [2] [a]).     This means that
the Special Prosecutor's authority is limited by the choices
exercised by the District Attorney.     For example, a Special
Prosecutor who, without consent, seeks to prosecute an individual
that the District Attorney has declined to prosecute would be
interfering with the prosecutorial discretion of that District
Attorney.    Similarly, a prosecution unapproved by the District
Attorney may very well interfere with an ongoing investigation --
an outcome counter to the legislative intent.
            Second, the Act does not provide the Special Prosecutor
with complete independence because it requires notification to
the District Attorney of any warrant application, and also
mandates that the Special Prosecutor consult with the District
Attorney before appearing in County and Supreme Court or at a
grand jury.    Although nowhere in the Act does it use the word
"consent" or state that the District Attorney must give prior
consent, given that the Act clearly protects the authority of the
District Attorney from any interference by the Special
Prosecutor, the only manner by which interference can be avoided
is by notice, consultation and consent.     While the legislative
findings reference concurrent authority of the Special Prosecutor

                               - 14 -
                               - 15 -                         No. 86

and District Attorney, this prefatory language is not in tension
with a construction of the Act that requires a local District
Attorney's consent.    The Act is properly understood as granting
the Special Prosecutor the full range of prosecutorial power
available to the District Attorney, once the District Attorney
has consented, and so long as the District Attorney retains
ultimate responsibility to prosecute (see Soddano, 86 NY2d at
728).    Nor does the inclusion of the special prosecutor within
the definition of District Attorney, as set forth in CPL 1.20
[32], affect this analysis.    That section recognizes that the
Special Prosecutor's authority to act as a District Attorney only
applies within the confines of the Act, and, as discussed, the
Act requires that the District Attorney consent to any
prosecution.
            As explained above, the Act may be interpreted in a
manner that is congruent with the constitution and our case law.
Specifically, because the District Attorney's essential
prosecutorial power to determine whether, who and how to
prosecute may not be diminished or transferred to an unelected
official, the unelected Special Prosecutor may appear on criminal
matters so long as the District Attorney does not object, and
retains ultimate responsibility for any prosecution handled by
the Special Prosecutor.5


     5
       On this appeal the Court need not consider the nature of
the District Attorney's involvement in a criminal action

                               - 15 -
                              - 16 -                          No. 86

          In contrast, an independent Special Prosecutor, in the
nature described by the Justice Center, would violate the
constitution by transferring the essential power to choose
whether and who to prosecute from elected District Attorneys to a
nonelected official.   This would diminish the District Attorneys'
core responsibilities as constitutional officers to prosecute
crimes and to choose what crimes to prosecute.
          There is an important governmental public policy of
ensuring independence for those charged with absolute discretion
to pursue criminal matters.   This policy furthers our democratic
system of checks and balances and reaffirms this Court's prior
recognition of the "awesome and sometimes coercive force of the
State" (People v Rogers, 48 NY2d 167, 173 [1979]).   This "awesome
power" is illustrated by the state's ability to deprive
individuals of their liberty and freedom.   However, it is equally
present when the state charges an individual with a crime.
Indeed, the mere act of bringing charges can have profound and
far-reaching effects on a person.   A person's reputation can be
ruined, employment terminated, and finances placed in jeopardy,
regardless of whether that person is later acquitted or the
charges are dropped.   Under our constitution and case law the
"awesome power" of unchecked prosecutorial authority requires
public oversight and cannot be held by an unelected special


initiated by the Special Prosecutor.


                              - 16 -
                                  - 17 -                             No. 86

prosecutor.


                                  III.
             The matter should be remanded to determine whether the
District Attorney consented to defendant's prosecution.         If
consent was provided then the prosecution may proceed in Town
Court.   Otherwise, the Special Prosecutor may not unilaterally
prosecute defendant.
*   *    *    *   *   *   *   *     *      *   *   *   *   *   *     *   *
Order affirmed, in a memorandum. Judges Pigott, Stein, Fahey and
Garcia concur. Judge Rivera dissents in an opinion in which
Judge Abdus-Salaam concurs. Chief Judge DiFiore took no part.

Decided June 7, 2016




                                  - 17 -
