- Associated Press - Tuesday, April 26, 2016

ALBANY, N.Y. (AP) - The lawyer for a woman accused of hitting a juvenile in state care told New York’s highest court Tuesday the state’s Justice Center lacks statutory authority to charge anyone with lower-level crimes in local courts.

The center opened in 2013 authorized by the Legislature to investigate and prosecute abuse and neglect of disabled, mentally ill and addicted people and youths in state care.

However, Martesha Davidson is challenging its authority to charge her with misdemeanors in Lansing Town Court. She’s accused of hitting a 14-year-old boy in the face at the Finger Lakes Residential Center for juvenile delinquents in Tompkins County in December 2013.

“What I’m concerned about is what happened in this case,” her lawyer Robert LaLonde said. A state trooper initially investigated Davidson’s case, and the county district attorney declined to prosecute. Then the Justice Center investigated and brought charges, he said.

“Was that exactly what the statute was designed to do because people weren’t prosecuting these cases?” Judge Michael Garcia asked. He noted the prior reports of abuse and neglect of disabled individuals in state care that led to creation of the center.

The law only specifies the Justice Center can prosecute in state-level courts and before grand juries, LaLonde said. He believes it can bring lower-level misdemeanor charges, normally handled in town and village courts, but only after first getting indictments from a grand jury.

“At least that gives a defendant some sort of protection from this non-elected, governor-appointed-only prosecutor,” he said.

State Solicitor General Barbara Underwood told the court there’s an underlying constitutional problem, that only elected county district attorneys and the attorney general have the power to prosecute in New York. “This is the first time the Legislature has ever purported to create a new special-purpose prosecutor who is not accountable to either the district attorney or the attorney general. If this court were to endorse the practice there well may be many more,” she said.

The law requires Justice Center prosecutors consult with county district attorneys. If the court were to interpret the law to mean that it requires the actual consent of a district attorney to bring cases, then that would take care of the constitutional issue, she said.

There’s a common law tradition of misdemeanor prosecutions by police officers and victims making complaints, which New York’s top court has said needs approval and ultimate responsibility by a county’s district attorney. “For that, it might be sufficient for the district attorney to approve the general practice as distinct from close monitoring of every case,” she said.

“There is no doubt that the Justice Center is a useful important way of bringing resources and expertise and so forth to bear on a problem,” she said. “It could easily have been altered slightly to deal with the constitutional problem.”

Justice Center general counsel Robin Forshaw argued it has statutory authority to prosecute abuse cases. The attorney general isn’t a constitutionally created prosecutor, but only as has been granted that authority as given by the Legislature, she said.

The center’s prosecutors now give notice to and consult with county district attorneys as the statute calls for, Forshaw said. “I don’t believe that the statute can be read to require consent,” she said.

The seven-member court usually rules a month after hearing cases.

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