Mariana Viviani and her attorneys in court. (Photo by Jim Franco/Spotlight News)
ALBANY – At issue is whether or not the state constitution grants the Justice Center for the Protection of People with Special Needs the unilateral authority to prosecute cases.
Albany Supreme Court Judge Thomas Breslin will set the stage in a little more than a week for what will likely be a protracted legal battle that could work its way to the state’s highest court.
Attorneys for the Justice Center, Marina Viviani, the teacher accused of having sex with a 17-year-old student, and the state Attorney General’s Office, who intervened in the case, were briefly in front of Breslin on Thursday, March 9. The judge gave them a week to file any additional information and then said he would rule on the sticky jurisdictional dilemma shortly thereafter.
The impact of the ruling could have a dramatic effect on how the Justice Center goes about its business of investigating and prosecuting allegations of abuse and neglect in state sanctioned facilities for the disabled. And could impact the cases it has already investigated and prosecuted.
Michael Pollok, Vivianni’s attorney, wants the case dismissed because, he said, the Justice Center cannot bring criminal charges without, at a minimum, the explicit consent and oversight of a county DA or the state AG since they are the only two entities with the constitutional authority to prosecute cases.
“It is not a constitutional officer and does not have the power to prosecute, period,” Pollok said of the Justice Center.
Whether or not that permission was granted in the case against Viviani is up in the air. An Albany County ADA did sign a piece of paper acknowledging the Justice Center was prosecuting, but whether or not that qualifies as “permission” is the crux of Pollok’s argument.
The Justice Center, though, in paperwork and in court, believes it has concurrent authority and doesn’t need permission from anyone to investigate and prosecute instances of abuse and neglect so long as the allegations are the infractions took place in a state run, licensed or sanctioned facility.
When the state Legislature, at the urging of Gov. Andrew Cuomo,
created the Justice Center in 2012, it was in fact granted “concurrent” authority to prosecute along with the independently elected district attorneys. Attorney General Eric Schneiderman, however, stepped in because he maintains the state Constitution only grants the authority to prosecute to the county DAs and the state AG.
In court, Jacqueline Kagan, the Justice Center deputy special prosecutor, said the Albany County ADA did give consent by signing the letter.
To address the broader issue, she pointed to other instances where the power to prosecute was given by legislative action rather than election – the special narcotics prosecutor in New York City, and the deputy attorney general in charge of the state Organized Crime Task Force.
“The idea of ultimate jurisdictional authority to prosecute must remain with the DA is an idea that comes from the Court of Appeals with respect to lay individuals … troopers, county attorneys or a complainant,” she said. “The appointment of a prosecutor and the existence of concurrent jurisdictional authority is not something new to the special prosecutor for the Justice Center, in fact it follows a long history of such legislative grants of authority.”
Andrew Amend, the senior assistant solicitor general at the AG’s office, and Pollok however, pointed to the mechanisms in which Kagan’s two examples work to exemplify how they are different from how the Justice Center prosecutes cases.
For example, Pollok said, the narcotics special prosecutor is appointed by the five district attorneys representing each of the boroughs of New York City and answers to them directly. The deputy AG in charge of the organized task force, Ammend said, is a deputy AG and “cannot go in front of a grand jury without the permission of the DA so there is an additional level of constitutional protection.”
“We do not oppose the mission of the Justice Center or the protection of people with special needs or the dedication of specialized attorneys, resources and expertise to the issues addressed by the Justice Center,” he said. “We are here to protect the constitutional limitations on the selection of constitutional officers”
Viviani was arrested in September, 2016 for allegedly having sexual relations with a student at the LaSalle School, a school for troubled youth on Western Avenue licensed by the state Office of Children and Family Services.”
Pollok is asking Breslin to drop the charges because the Justice Center did not have the authority to empanel a grand jury and bring charges and did not get permission from Albany County David Soares to bring charges.