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Judge: Prosecutorial Misconduct Commission unconstitutional

 ALBANY — A state judge has declared unconstitutional a commission on prosecutorial misconduct, raising the possibility that the nation’s first such panel may never get off the ground.

Judge David Weinstein, a Supreme Court justice in Albany County, said the law creating the commission is “inconsistent with provisions of the New York State Constitution.” In particular, Weinstein said the law could violate separation of powers protections among the judicial, executive and legislative branches of government.

The commission was created by Gov. Andrew M. Cuomo and state legislators in 2018.

Cuomo has said the panel is necessary to root out and stop wrongful convictions, costly retrials and expensive lawsuit settlements at taxpayer expense. The investigative agency would have powers to admonish, censure, or recommend the termination of prosecutors who have behaved unethically, Cuomo said.

Activists pointed to a string of wrongful convictions. Long Island has had several such cases, including that of Keith Bush, who was convicted in 1976 of murdering a 14-year-old Bellport High School girl. In May, a Suffolk County judge exonerated him after a lengthy investigation by Spota’s successor, District Attorney Timothy Sini. In December, a spokesman for Cuomo said his office was reviewing the Bush case for possible prosecutorial misconduct.

Another case involved Shawn Lawrence, a former North Amityville resident who in 2018 had a murder conviction and a 75-year prison sentence vacated.

District attorneys across New York opposed the law. They questioned the State Legislature’s authority to create such an oversight panel, arguing that Cuomo and state legislators would need to amend the state’s constitution — in a voter-approved referendum — just as lawmakers did in creating the Commission on Judicial Conduct.

The District Attorneys Association of New York State almost immediately filed a lawsuit to block the law. As a result, the launching of the prosecutorial misconduct commission was put on hold pending legal action,.

In essence, Weinstein agreed with the prosecutors’ arguments.

The judge noted the constitution gives power to the Appellate Division, the state’s midlevel trial court, to discipline attorneys. Creation of the commission conflicts with that provision, Weinstein said.

 “The commission in its presently defined capacity interferes with and thereby diminishes the Appellate Division’s constitutional and exclusive jurisdiction over attorney discipline,” Weinstein wrote in a decision filed Tuesday.

 The Legal Aid Society, which represents people who cannot afford a lawyer, said it was “immensely disappointed with the court’s decision.”

Tina Luongo, Legal Aid’s attorney in charge of criminal defense practice, called prosecutorial misconduct "a reality that our clients and our attorneys confront on a daily basis. There must be an independent body to hold prosecutors accountable when they break the law or act in bad faith. This decision will not stop the movement for real accountability.”

Orange County District Attorney David Hoovler, president of the prosecutors' association, said: "As we have said all along, the legislation was rife with constitutional defects and would have impermissibly interfered with fundamental law enforcement functions and prosecutorial discretion."

Cuomo, while not saying his administration definitely would appeal Weinstein's ruling, voiced support Wednesday for oversight of prosecutors.

"I think [district attorneys] should have a check and a balance," Cuomo told WAMC, an Albany public radio station. "There’s flaws and foibles, and they’re not perfect people just because they’re a DA ... And there is possibility that there’s misconduct by a DA, and there should be an apparatus to address that."

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