ALBANY COUNTY — The case against Guilderland resident Justin Hope on charges of sexual abuse were dismissed late last month by Judge William A. Carter of Albany County Court. This is the second time since March that a case prosecuted by the Justice Center for the Protection of People with Special Needs has been dismissed by a judge who questioned the center’s independent prosecutorial authority.

Hope had been charged, in a case brought by the Justice Center for the Protection of People with Special Needs, with bringing a resident of Troy’s Vanderheyden Hall — where Hope worked as a direct-care aid — to his Guilderland apartment and sexually abusing him.

In his July 28 decision, Carter granted a motion by Hope’s attorney, Lee Kindlon of Albany, to dismiss the indictment on the grounds that the legislation creating the Justice Center unconstitutionally grants the center prosecutorial authority.

In March, State Supreme Court Judge Thomas A. Breslin dismissed a case against Marina Viviani, a teacher accused of having sex with one of her students at Albany’s LaSalle School for troubled youngsters.

Constitutional conundrum

The Justice Center, located in Delmar, was created in 2013 by legislation spearheaded by Governor Andrew Cuomo. The center was charged with tracking, investigating, and prosecuting serious allegations of abuse and neglect of people with special needs; Patricia Gunning was appointed to prosecute allegations that rose to the level of criminal offenses.

The governor’s office did not respond to questions from The Enterprise before deadline.

In a statement Gunning made at the time the center opened, she called it an “unprecedented opportunity to ensure that individuals who abuse or neglect New Yorkers with special needs will be prosecuted to the fullest extent of the law.”

She went on, “While these cases can be challenging, the Protection of People with Special Needs Act provides the Justice Center with unparalleled tools to hold individuals who commit crimes against this population accountable for their actions and further develop measures to prevent such incidents from occurring in the future.”

Those tools are now being tested in court.

Kindlon said this week that Carter had found that the Justice Center “did not have the unilateral authority to prosecute this case.” He added that Carter also found that the case cannot be, “after the fact,” handed over to the Albany County District Attorney’s Office, since there is “no showing that they [the Center] were ever authorized to prosecute cases, or this case, in the first instance.”

Kindlon suggested that the legal foundation for the statute creating the Justice Center has “significant constitutional problems.”

He anticipates that Carter’s decision will be appealed, although he has heard nothing yet about an appeal.

There is also a third case now awaiting decision by Judge Roger McDonough, Kindlon said, which is being defended by Kindlon’s father, Terence Kindlon, of the Albany County Public Defender’s Office. “They could be waiting for that one to come,” he said.

That case involves a woman charged with having sex with a resident of Albany’s Hope House, a drug treatment center, said Terence Kindlon.

“Short of a constitutional amendment, the Justice Center’s mission needs to probably be redefined,” Kindlon said. “As they [the Center] become a state agency that develops these cases, and then hands them off to a prosecuting authority like the Attorney General, or like the local DA’s office, that would in all likelihood pass muster.”

There are other state agencies that do that, Kindlon said, noting that the Board of Elections is “the most common one we see in court. But standing on its own, at least right now, the Justice Center, it seems they lack the authority to do it.”

Terence Kindlon said, “If the Justice Center — I think that's a misnomer, quite frankly — gets to have its own prosecutor, and it’s legal for that to be the situation, then next year Motor Vehicles is going to have its own prosecutor, and the year after that, Ag and Markets, and the year after that, some other state agency, and pretty soon every freakin’ state agency in the entire bureaucracy each has its own special prosecutor.”

The constitutional reality, he said, is that, in order to prosecute criminal offenses, the prosecutor must have authority that arises from the constitution and is derived from the people of the State of New York.

The problem, Terence Kindlon said, is that a special prosecutor within a state agency is appointed, not elected, and cannot be voted out if people do not like what he or she is doing.

The term of a special prosecutor within a state agency has no end date, the elder Kindlon said. “You can’t vote them out of office.”

William Reynolds of the Justice Center, asked to respond to the Kindlons’ comments about problems with a special prosecutor for a state agency, said, “I cannot comment on the ongoing litigation before Judge McDonough. However, the Justice Center is appealing the Viviani decision.”

He did respond, in general terms, on the philosophy behind having a special prosecutor, writing in an email to The Enterprise, “Under the leadership of Governor Cuomo, and with the full support of the NYS Legislature, New York became the first state in the nation to create an independent state agency dedicated to safeguarding people with special needs.  By establishing clear definitions of abuse and neglect, mandated reporting, criminal background checks and thorough, fair and independent investigations, the Justice Center has taken unprecedented and decisive action to protect the health, safety, and dignity of our most vulnerable citizens.”

Reynolds went on to cite the portion of the law that outlines its purpose: “There  is  a  recognized need  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. There are over 270,000 children  and adults with disabilities or other life circumstances that make them vulnerable in residential facilities  under  the  auspices  of  six state agencies that operate, license or certify such programs.  In addition,  a  significant  number  of persons rely on day programs operated, licensed or certified by the state.

“Although  all  of  these  programs share  a  common  obligation to protect such persons, and keep them safe from abuse and neglect, there are fundamental  differences  in  how  the state  agencies  meet  their obligations, as well as major gaps in oversight that may expose vulnerable persons to harm.

“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.”

What’s next for Hope?

Lee Kindlon noted that Justin Hope was charged — ”maybe two weeks ago” — in a “companion case being prosecuted by the Rensselaer County District Attorney’s Office,” Kindlon said. He added, “My sense is that one of the State Troopers who was involved in the original case saw the writing on the wall, in terms of where this case was probably going to go, and brought a companion case being prosecuted by the Rensselaer County DA’s Office, just in case the charges were dismissed in Albany.”

Spokesman Jon Desso of the Rensselaer County District Attorney’s Office confirmed that the office currently has two open cases against Hope, both related to the same incident.

Kindlon said that those cases would probably not be a matter of double jeopardy, since Hope wasn’t convicted of anything in Albany. He said there could be a speedy-trial concern, but that he didn’t think it had hit that mark yet. He said there are a number of small questions that need to be looked at and answered.

“I don’t know where the Rensselaer County stuff is going to go,” Kindlon said. “Clearly Justin wants to put the whole thing behind him.”

Asked what Hope is doing now, Kindlon said he is not working with people with disabilities. “He’s keeping his head down, trying to keep his spirits up.”