Barbara Underwood, is the first woman to serve as Attorney General in the State of New York. She met with the New York Law Journal on June 15, 2018, at her office in Manhattan. Photo: David Handschuh/NYLJ

New York's highest court heard arguments Wednesday on whether a former residential counselor convicted of sexually abusing a woman in his care at a group home should have the chance to bring his appeal back to the trial court that convicted him and reveal new information that could toss the indictment brought against him five years ago.

Former New York Attorney General Barbara Underwood, now reprising her role as state Solicitor General, appeared before the Court of Appeals to defend the state law in question.

The appeal considered whether the Appellate Division, Third Department erred when it decided it couldn't address an argument to throw out the case brought against the counselor, Michael Cubero. But it also had to do with whether a state entity was allowed to bring the case at all.

Cubero was represented before the Court of Appeals by George Hoffman, an attorney from Rensselaer County. He argued that the case should be sent back to the trial court, without a motion, to clarify information he said could reverse the case against Cubero.

"This court has to act to see that justice is accomplished," Hoffman said. "By putting form over the merits, you're not accomplishing justice."

Cubero was indicted in 2014 on charges that he sexually abused a female resident in his care while he worked as a residential counselor at Rehabilitation Support Services in Orange and Sullivan Counties. The victim, who was diagnosed with a severe mental illness and disability, testified to the abuse at trial.

But unlike other criminal defendants, Cubero wasn't prosecuted by a local district attorney or the state attorney general's office. He was, instead, charged by a special prosecutor with the Justice Center, a state entity tasked with investigating claims of neglect and abuse among people with special needs.

He was convicted in Sullivan County Court on three felony counts and two misdemeanor counts of sexual abuse and endangerment and was sentenced to eight years in prison.

Cubero appealed his conviction to the Third Department, where he was also represented by Hoffman. On appeal, Hoffman argued that Cubero should have never been prosecuted by the Justice Center in the first place because it allegedly lacked the power to do so.

Hoffman claimed on appeal that the state constitution doesn't allow an appointed special prosecutor, such as one from the Justice Center, to pursue criminal cases alone without consultation from a local prosecutor or the state attorney general.

The exception to that interpretation, Hoffman argued, would be if the special prosecutor had gone forward on a case with the consent of a local or state prosecutor. But that didn't happen in this case, Hoffman claimed.

That allegation—that the Justice Center had prosecuted Cubero without consent from another prosecutor—was what created the conflict before the Court of Appeals on Wednesday.

The Third Department, in its decision, said it couldn't reverse or modify the trial court's decision, because there was no information in the case record that would support, or debunk, the claim. The panel decided to affirm the decision.

"Because we do not know what the outcome would be, and since it is possible that the outcome could be to affirm, we find no authority that would permit us to take corrective action with respect to this issue in the interest of justice," the appellate court wrote.

But the judges of the Court of Appeals, on Wednesday, presented several different avenues for how they might decide the case, which could ultimately result in the reversal of Cubero's conviction.

They could, for example, hold that the Third Department had the power to send the case back to the trial court for additional fact-finding—primarily investigating whether the Justice Center either collaborated with local prosecutors or sought their consent on the case. That was Hoffman's preference.

"The Appellate Division improperly restricted its interest of justice jurisdiction, that it does have the authority to withhold a decision … [and] send it back for further factual development on these crucial issues," Hoffman said.

Caitlin Halligan, an assistant special prosecutor for the Justice Center, argued that, instead, Cubero should be required to seek relief through a new motion to vacate his judgement, which is the traditional avenue for offenders seeking to introduce new information to the record.

"There is no precedent for the Appellate Divisions to exercise their interest of justice jurisdiction on an unpreserved claim in a way that allows for a remittal and the development of a factual record on a new issue," Halligan argued.

Underwood appeared on behalf of the state, which intervened in the case to defend the constitutionality of the Justice Center's prosecutorial authority. But, as she noted, the appeal before the high court was more about what should happen with the case going forward, rather than the power of the Justice Center.

She said the Appellate Division correctly ruled that it couldn't remit the case back to the trial court to supplement the record because, as Halligan claimed, there's already a procedure in place for defendants to introduce new evidence for the trial court to consider.

"An inquiry into evidence that was never before the trial court is a whole other project and, as the Legislature has made very clear, the ordinary path for litigating matters that were not only not preserved, but not on the record or even available for review, is through collateral proceedings," Underwood said.

She argued that the Court of Appeals should affirm the Appellate Division's decision, either on the grounds that the panel was correct in not having the authority to send the case back to the trial court for additional fact-finding, or that it was correctly exercising its discretion in the case.

A decision from the Court of Appeals could also include an analysis on whether the Justice Center was constitutionally allowed to act in a prosecutorial manner, Associate Justice Michael Garcia said. If they find it wasn't, that could change the case entirely, he said.

"It could be this court finds that delegation of prosecutorial authority constitutional," Garcia said. "It could be that we find it unconstitutional, in which case this means nothing."

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