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1STATE OF NEW YORK

COUNTY OF ALBANY SUPREME COURT

THE PEOPLE OF THE STATE OF NEW YORK,

AFFIRMATION/
MEMORANDUM OF LAW

-against-
Judge McDonough
Index No:
NICOLE HODGDON, Indictment No:
Defendant.

AFFIRMATION/ MEMORANDUM OF LAW

Terence L. Kindlon, an attorney duly authorized to practice law in the state of New York,

affirms:

1. I represent Nicole Hodgdon, and this Affirmation is based upon my own

knowledge and upon information and belief.

2. Ms. Hodgdon was arraigned before this Court and entered a plea of "not guilty".

THE UNELECTED SPECIAL PROSECUTOR LACKS AUTHORITY, ON BOTH


CONSTITUTIONAL AND STATUTORY GROUNDS, TO BRING THIS PROSECUTION

3. The indictment herein is invalid. It was procured not by the Albany County

District Attorney nor by the New York State Attorney General but by a so-called special

prosecutor who, notwithstanding her job title, does not meet the constitutional standard to be a

criminal prosecutor but is merely an employee of a state agency called the Justice Center for the

Protection of People with Special Needs (hereinafter Justice Center).

4. The position of special prosecutor is nothing more than a label utilized by the

legislature in 2012 as part of the legislative package when it established the Justice Center (see

Executive Law 552).


5. The legislatures purported appointment of an unelected special prosecutor is a nullity.

It represents an improper attempt to usurp the criminal prosecution duties, powers and obligations of

the constitutional officers specified in the New York State Constitution, i.e., the duly elected Albany

County District Attorney and (in certain circumstances) the duly elected Attorney General.

6. In this instance the legislature has impermissibly attempted to transfer or diminish the

core responsibilities of the District Attorney, a constitutionally elected officer, through appointment of

an unelected official (see People ex rel. Wogan v. Rafferty, 208 NY 451 [1913]; see also N.Y.

Constitution at. V, section 1 [the attorney-general shall be chosen at thegeneral election], Art. XIII,

section 13[a][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) and the sole discretion to conduct

all phases of criminal prosecutions (Matter of Soares v. Carter, 25 NY3d 1011 [2015].

7. The defense adopts by reference the position articulated by Judge Rivera in her dissent

in People v. Davidson, 27 NY3d 1083, which demonstrates that criminal prosecution is an essential

function that may be exercised only by the elected constitutional offices of the County District Attorney

and the State Attorney General.

8. It is submitted that the vesting of prosecutorial authority in officials who are elected

specifically for that purpose and made directly accountable to the people plays an essential role in

maintaining public confidence in the criminal justice system.

THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT

9. At issue in this case is the validity of a criminal prosecution conducted under the

Protection of People with Special Needs Act. The Act seeks to enhance protections for people with

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disabilities or other life circumstances that make them vulnerable to abuse in residential facilities

supervised by state agencies such as the Office of Mental Health, the office of People with

Developmental Disabilities, and the Office of Children and Family Services (OCFS). Ch. 501, 1,

2012 McKinneys N.Y. Laws at 1289.

10. To that end, the Act created the Justice Center for the Protection of People with Special

Needs (Justice Center), a state agency headed by an executive director who is appointed by the

Governor with the advice and consent of the Senate. See Executive Law 551(1).

11. The Justice Centers statutory responsibilities include receiving reports of abuse and

neglect of vulnerable individuals, investigating reported incidents, reviewing substantiated findings of

abuse or neglect, and pursuing disciplinary charges against state employees. Id. 552(1), 553; Social

Services Law 492.

12. The Justice Center also contains a unit charged with prosecuting criminal matters under

the supervision of the Special Prosecutor, who is appointed by the Governor. See Executive Law

552(1)-(2). In a provision codified at Executive Law 552(2)(a), the Act states that the Special

Prosecutor shall have the duty and power[ ]to investigate and prosecute offenses involving abuse or

neglect as defined in Social Services Law 488. The Legislature also amended C.P.L. 1.20(32)s

definition of district attorney to include the Special Prosecutor. See Ch. 501, 4, 2012 McKinneys

N.Y. Laws at 1302.

13. The Acts statement of legislative findings and purpose describes the Special Prosecutor

as having concurrent authority with district attorneys to prosecute abuse and neglect crimes against

vulnerable individuals. See Ch. 501, 1, 2012 McKinneys N.Y. Laws at 1289. At the same time, the

Acts operative provisions declare that nothing herein shall interfere with the ability of district

attorneys at any time to receive complaints, investigate and prosecute any suspected abuse or neglect.

Executive Law 552(2)(a).

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14. The New York State Constitution establishes the offices of Attorney General and

District Attorney, People v. Gilmour, 98 N.Y.2d 126, 130 (2002) (citation omitted), and specifies that

they are to be elected officers.1

15. Where the Constitution creates or recognizes an office and prescribes how it is to be filled, the

Legislature may not transfer any essential function of the office to a different officer chosen in a

different manner. People ex rel. Wogan v. Rafferty, 208 N.Y. 451, 456 (1913). In Wogan the Court

held that the Constitution did not permit legislation purporting to create a Deputy County Clerk who

would have all the powers andduties of the elected County Clerk respecting the County Court but

would be selected by appointment and authorized to serve a longer term than the Clerk himself. Id. at

455, 460.

16. When 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 holda different tenure than that which was provided for by the Constitution, that 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. Warner v. People ex rel. Conner, 2 Denio 272, 281

(N.Y. 1845) (Walworth, Ch.) (quoted in Wogan, 208 N.Y. at 456-47).

17. The Attorney General continu[es] to retain a measure of prosecutorial power, which

the Legislature may activate through particular statutory enactments. Gilmour, 98 N.Y.3d at 130; see

also Mulroy, 58 A.D.2d at 212 (noting Attorney Generals latent powerto prosecute and the

Legislatures reliance on that historical role). For example, Executive Law 63 authorizes the

Attorney General to assume prosecutorial responsibility for particular cases, including local crimes, at

the request of the Governor or the head of a state agency, See Executive Law 63(2)-(3); Gilmour, 98

1 See N.Y. Const., art. V, 1 (The comptroller and attorney-general shall be chosen at the same general election as the
governor and hold office for the same term); id. Art. XIII, 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.).

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N.Y.2d at 131-32 (examining 63(3)); Matter of Johnson v. Pataki, 91 N.Y.2d 214, 223-25 (1997)

(examining 63(2)).

18. The Constitutions specification that the County District Attorneys and Attorney General

must be selected through election represents a conscious choice to provide the people with elected

rather than appointed prosecutors.

19. If read to invest the Special Prosecutor with independent prosecutorial authority, the Act

would overstep these limits. The Act would impermissibly assign core prosecutorial powers to an

appointed officer not accountable to a County District Attorney or the Attorney General.

20. A prefatory statement in the Protection of People with Special Needs Act describes the

Special Prosecutor as having concurrent authority with district attorneys to prosecute abuse and

neglect crimes, Ch. 501. 1, 2012 McKinneys N.Y. Laws at 1289. But the creation of such an officer

would violate the constitutional principle that where the Constitution prescribes the means for filling an

office, the Legislature may not assign core functions of that office to a different officer selected by

different means. Criminal prosecution is a substantial and essential attribute, Wogan, 208 N.Y. at

458-459, of the positions of County District Attorney and Attorney General. The Legislature therefore

may not vest the discretionary power to determine whom, whether and how to prosecute, Haggerty,

89 N.Y.2d at 436 (quotation marks omitted), in an officer other than a County District Attorney or the

Attorney General.

GRAND JURY

21. Nicole Hodgdon requests the Court conduct an in camera inspection of the grand jury

minutes to determine their sufficiency, and disclose the information to defense counsel.

22. Upon information and belief there are not sufficient facts alleged therein to sustain the

charges set forth in the indictment and the same should be dismissed.

23. Upon information and belief the instructions given to the grand jury by the prosecutor

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were insufficient, and therefore the indictment should be dismissed.

24. Upon information and belief the grand jury was illegally constituted, in that it was not a

representative group of the community, and therefore the indictment should be dismissed or, in the

alternative, the defense should be provided with a list of the names, races and genders of the members

of the grand jury who were present for the vote as to the indictment.

25. Whether there were 16 grand jurors present or whether fewer than 12 who heard all of

the information concurred in the finding in the indictment is for this court to determine after a review of

the grand jury minutes. If there were fewer than 16 grand jurors present, or if fewer than 12 who heard

all the information concurred in the finding in the indictment, the indictment should be dismissed.

26. Upon information and belief the grand jury proceedings failed to conform to the

requirements of CPL 190 to such a degree that the integrity of the proceedings was impaired and

prejudice to Defendant may result. Therefore the indictment should be dismissed.

27. It is common practice for prosecutors to engage in unfair tactics when presenting before

the grand jury; upon information and belief this is what occurred when the district attorney presented

this case before the grand jury, and as a result the indictment should be dismissed.

28. Around the time of Nicole Hodgdons arrest, sensationalized news coverage saturated

Albany County and the pool from which the grand jury was selected. News accounts running in the

Bethlehem Spotlight, Albany Times Union and broadcast on the electronic news media chronicled the

allegations surrounding the case. As a result the Court should dismiss the indictment because the grand

jury was inundated with prejudicial pre-trial publicity.

29. In the event the Court does not dismiss the indictment, Defendant requests an Order,

providing that the Court examine the stenographic minutes of the grand jury proceeding, reducing each

count to a lesser included offense on the grounds that the evidence was not legally sufficient to

establish the elements of the count.

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BRADY MATERIAL

230. Upon information and belief the prosecution has possession of or access to important

evidence or information which might be favorable to Defendant. Under Brady he has a right to all

evidence within the possession or knowledge of the prosecution which might be favorable to him.

Moreover, Rule 3.8(b) of the New York Rules of Professional Conduct states:

A prosecutor . . . in criminal litigation shall make timely disclosure to counsel for the
defendant . . . of the existence of evidence or information known to the prosecutor . . . that tends
to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence,
except when relieved of this responsibility by a protective order of a tribunal.
Evidence or information which impugns the credibility of the People's principal witness
against the defendant tends to negate his guilt and, therefore, these rules obligate the prosecutor
to disclose this material to the defense as soon as possible.

331. This includes all favorable information (including impeachment information) regardless

of whether the government believes that the information could change the outcome of the trial. People

v. Williams, 50 AD3d 1177 (3rd Dept 2008); United States v. Bagley, 473 US 667, 682 (1985); United

States v. Safavian, 233 F.R.D.12, 16 (D.D.C. 2005); see, e.g., United States v. Carter, 313 F. Supp. 2d

921, 923-25 (E.D. Wis. 2004).

32. The material which must be provided pursuant to Brady and its progeny also includes

favorable documents and information (including impeachment information) even if they are

inadmissible, as long as the documents and information are reasonably likely to lead to the discovery of

admissible evidence. United States v. Brown, 650 F.3d 581, 588 (5th Cir. 2011); see Bagley, supra.

33. The Brady obligation additionally includes favorable information

(including impeachment information) developed in the course of interviewing potential witnesses and

preparing them for trial, whether or not the information has been memorialized in writing. See

Robinson v. Mills, 592 F.3d 730 (6th Cir. 2010).

ROSARIO MATERIAL

34. Upon information and belief the prosecution has possession of various statements of

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witnesses regarding this case. Under Rosario Defendant is entitled to statements and reports of

witnesses created by law enforcement officers or prosecutors. In the interest of judicial economy and

in order to effectively prepare a defense, pre-trial disclosure of Rosario material is justified.

DISCOVERY/ BILL OF PARTICULARS

35. Nicole Hodgdon has duly filed an extensive Demand for Discovery and Request for a

Bill of Particulars. While some responses have been provided, some required material has not been

received. In addition, upon information and belief there is other material which should be provided,

including several police reports and witness statements. Ms. Hodgdon respectfully requests that the

Court order the prosecution to provide the defense with the search warrant application and other

material as soon as possible.

SANDOVAL/MOLINEUX/VENTIMIGLIA/CPL 240.43 MOTION

36. Nicole Hodgdon requests an Order prohibiting the prosecution from presenting at trial

any evidence that she committed any other crime or engaged in any other vicious, immoral or

otherwise unscrupulous conduct, or directing a hearing on the issue.

37. Nicole Hodgdon requests an Order prohibiting the prosecution from questioning him

should she choose to testify at trial, regarding any alleged prior bad acts, arrests or convictions with

which she may have been involved, solely for the purpose of impeaching her credibility; or that the

Court direct a hearing upon the issue.

38. Nicole Hodgdon requests that the court order the prosecutor to provide her with

notifications regarding all specific instances of her uncharged criminal, vicious or immoral conduct

which the prosecutor will seek to offer against her at trial upon its direct case.

She also requests notification as to what specific relevant purpose(s) such evidence will be offered.

39. Nicole Hodgdon requests the prosecutor to notify her of all specific instances of her

uncharged criminal, vicious or immoral conduct, which the prosecutor intends to use at trial for

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purposes of impeaching her credibility.

40. Nicole Hodgdon also requests the Court to make its determination as to any

Sandoval/Molineux issue at a hearing prior to the commencement of jury selection.

STATEMENTS

41. Nicole Hodgdon received no notice (as required by CPL 710.30) of any oral or written

statements allegedly made by her to law enforcement personnel and therefore the Court should

preclude any such statements. People v. Lopez, 84 NY2d 425 (1994).

IDENTIFICATION.

42. The prosecution has not provided notice of any identification procedures pursuant to

CPL 710.30. Therefore, Ms. Hodgdon requests an Order, pursuant to CPL 710.30(3) and People v.

Lopez, 84 NY2d 425 (1994) precluding any potential testimony concerning an identification of

Defendant as the person who allegedly committed the offenses herein on the ground that no notice was

given of any such identification.

RENEWAL OF MOTIONS AND HEARINGS 20 DAYS BEFORE TRIAL

43. Nicole Hodgdon requests an Order providing that requested hearings be held at least 20

days prior to trial so as to provide for effective representation.

44. Nicole Hodgdon requests an Order that these motions be renewable if portions of them

produce, or the district attorney on his/her own divulges, information not previously known to the

defense which necessitates further hearings or requests.

WHEREFORE, defendant moves for an order dismissing the indictment herein or, in the

alternative, granting a hearing to determine the validity of the indictment, together with such other and

further relief as the court may deem proper.

AFFIRMED: March 16, 2017.

ALBANY COUNTY PUBLIC DEFENDER

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BY: ______________________________
Terence L. Kindlon
Attorney for Nicole Hodgdon
60 South Pearl Street
Albany, New York 12207

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