Sunmount (Enterprise photo — Aaron Cerbone)

State Supreme Court judges are locked in a conflict over whether the state agency that investigates abuse allegations for facilities like Sunmount has the power to prosecute.

Albany County judges have dismissed three cases since March of this year on the grounds that the Justice Center for the Protection of People with Special Needs does not hold prosecutorial authority to convict. The Justice Center handles thousands of abuse complaints for the state Office for People with Developmental Disabilities, which includes the Sunmount center based in Tupper Lake.

Representatives from the Justice Center, armed with a ruling from last month, are preparing to challenge this notion and maintain the constitutionality of the agency’s ability to prosecute.

Created by Gov. Andrew Cuomo in 2013 to investigate the care of people with developmental disabilities in state facilities, the Justice Center has since substantiated thousands of cases of abuse or neglect, with less than 2.5 percent resulting in criminal charges, according to the Associated Press.

The Justice Center brings criminal cases to court through special prosecutors who are appointed employees of the agency. Because these prosecutors are not elected, as county district attorneys are, the judges said their power in the courts was null.

The conflict was first addressed in a dismissed abuse case against Marina Viviani, a former Albany teacher charged with having sex with a student at LaSalle School, a facility for troubled youth in Albany. Supreme Court Justice Thomas A. Breslin ruled that since the district attorney did not delegate prosecutorial authority to the Justice Center, the case was invalid.

Dismissed cases in August and September carried similar statements from Supreme Court Justice Roger McDonough.

The Justice Center plans to counter these rulings in court to cement its power to prosecute criminal cases, using another ruling from a judge who sided with the Justice Center’s assertion of its authority.

“A court ruling just this week affirmed the Justice Center’s prosecutorial powers when written consent is obtained from the District Attorney, which is done in every case,” Christine Buttigieg, the director of public information for the Justice Center wrote in an email. “As such, we will be appealing those cases that challenge this authority.”

In the case of the People of the State of New York vs. Charlie Davis, Judge Donald Leo denied a motion questioning the constitutionality of the law, citing Executive Law 552 (2)(a), which mandates that the Justice Center employ a special prosecutor and inspector general appointed by the governor who have the duty and power to investigate and prosecute offenses involving abuse or neglect.

The law states that the special prosecutor must consult with the county DA for consent and is granted power to prosecute in both superior and local courts.

In the initial case in March, Albany County DA David Soares took the position that the Justice Center does not even need a DA to prosecute and that the law grants that authority by itself.

“The Justice Center has concurrent jurisdiction to prosecute certain offenses based on the authority of the Executive Law statutes and not based upon any authority granted by the District Attorney,” according to his portion of the arguments listed in the court’s decision.

“Just like the state legislature – a long time ago – gave the district attorney the power to prosecute, the legislation that created the Justice Center gave the Justice Center prosecutors the power to prosecute,” Buttigieg said.

Franklin County DA Craig Carriero said he maintains contact with the Justice Center, knows what cases it takes and can object if he desires, though there is no formal agreement between the two.

Carriero said the special prosecutors have the same law licenses and qualifications as he and his assistant DAs do. The Justice Center has prosecuted some Sunmount cases while the Franklin County DA has taken others.

In 2015, the Justice Center prosecuted former Sunmount employees Jessica Rice and Suzanne Decheine for a 2013 cover-up of violence after the Franklin County DA’s office declined to prosecute the indictments. Stemming from the same incident, Corey Casciaro, Scott Norton and Jeff Defayette were prosecuted through the DA’s office, with Casciaro being acquitted of all charges, which included first-degree falsifying business records and third-degree assault; Norton’s case being dismissed following charges of official misconduct and third-degree falsely reporting an incident; and Defayette being convicted of second-degree falsifying a written instrument for filing while being acquitted of a first-degree charge of falsifying a written instrument.

Individuals already prosecuted by the Justice Center would only be able to appeal their sentences if the judge’s original assertions are confirmed and their attorneys mentioned the lack of power during their original trials. New evidence is not admissible in an appeal.