{"@context":"https://schema.org","@type":"DigitalDocument","altText":"AFFIDAVIT OR AFFIRMATION IN SUPPORT OF PROPOSED OSC/EXPARTE APP","alternateName":"NYSCEF-case-20f2fbf9d925-000002.pdf","caption":"NYSCEF document #2 | Filed: 2026-10-07 | Filed by: MILTENBERG, ANDREW T Filed:  Received: | Docket status: Processed Confirmation Notice | Case: Lopes v. Hochul (Cornell 7 Lopes Against Special Prosecutor Assignment Tish James) | Source: NYSCEF","contentUrl":"https://lucycraig.blog/media/442/raw","datePublished":"2026-10-16T19:59:14+00:00","description":"NYSCEF document #2 | Filed: 2026-10-07 | Filed by: MILTENBERG, ANDREW T Filed:  Received: | Docket status: Processed Confirmation Notice | Case: Lopes v. Hochul (Cornell 7 Lopes Against Special Prosecutor Assignment Tish James) | Source: NYSCEF","encodingFormat":"application/pdf","identifier":"442","isAccessibleForFree":true,"machineReadable":{"json":"https://lucycraig.blog/media/442/index.json","markdown":"https://lucycraig.blog/media/442/index.md"},"name":"AFFIDAVIT OR AFFIRMATION IN SUPPORT OF PROPOSED OSC/EXPARTE APP","ocrStatus":"ready","ocrText":"--- Page 1 ---\nSUPREME COURT OF THE STATE OF NEW YORK \nCOUNTY OF ALBANY \n--------------------------------------------------------X \n \nIn the Matter of the Application of  \nGILLIO LOPES, \n \n                                                      Petitioner, \n \nFOR A JUDGMENT PURSUANT TO \nARTICLE 78 AND SECTION 3001 OF THE \nCPLR  \n \n \n                                     -against- \n \n \n \n \n \n \n \n \n \nKATHLEEN (\u201cKATHY\u201d) M. HOCHUL, in \nher official capacity as Governor of the State \nof New York, and LETITIA JAMES, in her \nofficial capacity as Attorney General of the \nState of New York, \n \n                                                      Respondents. \n--------------------------------------------------------X  \n \n \n \nIndex No.:  \n \n \n \n             \n \nAFFIRMATION IN SUPPORT OF VERIFIED PETITION FOR  \nA JUDGMENT PURSUANT TO ARTICLE 78 \nAndrew T. Miltenberg, an attorney duly admitted to practice before the Courts of the \nState of New York, affirms, pursuant to CPLR \u00a7 2106(a) and under penalty of perjury, that the \nfollowing is true and correct: \n1. \nI am a partner at the law firm of Nesenoff & Miltenberg, LLP, attorneys for \nPetitioner Gillio Lopes (\u201cPetitioner\u201d), in the instant matter. \n2. \nIn that capacity, I am fully familiar with the facts and issues set forth in this \nAffirmation, which is being submitted in further support of Petitioner\u2019s Verified Petition, pursuant \nto CPLR Article 78. \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 2\nRECEIVED NYSCEF: 10/07/2026\n1 of 5\n\n--- Page 2 ---\n3. \nI submit this affirmation in support of the accompanying Verified Petition \nchallenging Governor Kathy Hochul\u2019s October 1, 2026 designation of Attorney General Letitia \nJames as Special Prosecutor pursuant to Executive Order No. 64. Unless otherwise indicated, the \nfactual statements herein are based upon my review of the documents identified below and the \nmaterials maintained by my office in connection with its representation of Petitioner. \n4. \nPetitioner seeks a judgment pursuant to CPLR Article 78 annulling or modifying \nthe challenged determination insofar as it authorizes Attorney General James personally to direct \nthe investigation and any resulting prosecution of Petitioner. \n5. \nSubmitted with the Verified Petition are copies of the following documents: \na. Exhibit 1: The complaint filed on September 16, 2026 in Jane Doe v. Cornell \nUniversity, Inc., et al., Supreme Court, New York County (the \u201cCivil Case\u201d). \nb. Exhibit 2: The news articles referenced in the Verified Petition concerning the \nallegations and the prior handling of the matter. \nc. Exhibit 3: CNN Article regarding New York prosecutors reopening investigation.  \nd. Exhibit 4: Governor Hochul\u2019s October 1, 2026 public statement announcing the \ndesignation of Attorney General James as Special Prosecutor. \ne. Exhibit 5: Executive Order No. 64, dated October 1, 2026. \nf. Exhibit 6: Attorney General James\u2019s September 28, 2026 post on the social media \nplatform X concerning Doe\u2019s allegations. \ng. Exhibit 7: Attorney General James\u2019s October 1, 2026 public statement concerning \nher appointment as Special Prosecutor. \nh. Exhibit 8: Various news articles regarding Attorney General Letitia James\u2019s \nappointment as Special Prosecutor. \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 2\nRECEIVED NYSCEF: 10/07/2026\n2 of 5\n\n--- Page 3 ---\n6. \nPetitioner is an individual defendant named in the Civil Case. The complaint alleges \nthat Doe was sexually assaulted at a fraternity house on Cornell University\u2019s campus during the \nevening of October 19, 2024 and the early morning of October 20, 2024. These allegations concern \nthe conduct that Governor Hochul subsequently directed the Attorney General to investigate. \n7. \nOn September 28, 2026, before receiving that designation, Attorney General James \npublicly posted the following statement in response to Doe\u2019s allegations: \u201cWhat this young woman \nhas been forced to endure is horrific and unacceptable. I\u2019m holding her in my heart and in my \nprayers. To her, and to all survivors: you\u2019re not alone. We stand with you.\u201d \n8. \nThree days later, on October 1, 2026, Governor Hochul issued Executive Order No. \n64 pursuant to Executive Law \u00a7 63(2). The Executive Order directs the Attorney General to \ninvestigate the alleged conduct and, if warranted, present evidence to a grand jury and prosecute \noffenses arising from that investigation. It supersedes the Tompkins County District Attorney with \nrespect to the matter specified in the Order. \n9. \nIn announcing the designation, Governor Hochul expressed concern about the prior \nhandling of the allegations and stated that those circumstances had undermined her confidence, \nand the public\u2019s confidence, in the district attorney\u2019s ability to investigate and prosecute the matter \neffectively. \n10. \nAttorney General James subsequently issued an October 1, 2026 statement \nrepresenting that her office would conduct the investigation fully and fairly and would be guided \nby the facts and the law. \n11. \nPetitioner\u2019s challenge concerns Attorney General James\u2019s public statement before \nthe designation and its implications for her subsequent exercise of investigative and prosecutorial \ndiscretion. Petitioner contends that her characterization of Doe\u2019s experience and identification of \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 2\nRECEIVED NYSCEF: 10/07/2026\n3 of 5\n\n--- Page 4 ---\nDoe with survivors communicated acceptance of the complainant\u2019s account before Attorney \nGeneral James was entrusted with the reopened investigation. \n12. \nAlthough the September 28 statement does not expressly declare Petitioner guilty, \nPetitioner submits that it provides an objective basis to question whether Attorney General James \nwill assess Doe\u2019s credibility and potentially contradictory evidence with an open mind. Petitioner \nfurther contends that the subsequent assurance of fairness does not resolve that concern because it \nneither retracts nor explains the earlier statement. \n13. \nPetitioner recognizes that prosecutorial disqualification requires a demanding \nshowing. New York generally requires actual prejudice arising from a demonstrated conflict of \ninterest or a substantial risk of misuse of attorney client confidences, while recognizing a narrow \nexception for an exceptionally serious appearance of impropriety. People v. Adams, 20 N.Y.3d 608, \n612\u201314 (2013); Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55 (1983). The accompanying \nVerified Petition sets forth Petitioner\u2019s argument that the circumstances here warrant relief under \nthose principles. \n14. \nPetitioner has a direct interest in the challenged designation because the \ninvestigation encompasses allegations concerning Petitioner\u2019s own conduct. The authority \nconferred by Executive Order No. 64 includes decisions concerning the pursuit of evidence, \nassessment of witnesses, grand jury presentations, and whether criminal charges should be brought \nagainst Petitioner. \n15. \nPetitioner contends that Attorney General James\u2019s prior public endorsement of \nDoe\u2019s account creates a substantial risk that those decisions will be influenced by prejudgment. \nLater review may not fully remedy the consequences of investigative choices and charging \ndecisions already made under the challenged designation. Petitioner therefore requests prompt \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 2\nRECEIVED NYSCEF: 10/07/2026\n4 of 5\n\n--- Page 5 ---\nB\n:\nAn rew\n.\nconsideration of the Petition before Attorney General James exercises fuither investigative or\nprosecutorial discretion concerning Petitioner.\n16. Accordingly, Petitioner respectfully requests a judgment pursuant to CPLR 7806\nannulling the challenged designation insofar as it authorizes Attorney General James personally to\ndirect the investigation and any resulting prosecution of Petitioner or, alternatively modiffing the\ndetermination to limit her personal participation, supervision, and control to the extent warranted\nby the Court's findings; remitting the matter to Governor Hochul for reconsideration consistent\nwith the judgment and applicable law; and granting such other and further relief as the Court deems\njust and proper.\nI affirm this 7th day of October,2026,under the penalties of perjury under the laws of New\nYork, which may include a fine or imprisonment, that the foregoing is true, except as to matters\nalleged on information and belief and as to those matters, I believe it to be true, and I understand\nthat this document may be filed in an action or proceeding in a court of law.\nDated:New York, New York\nOctober 712026\nEsq.\nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 2\nRECEIVED NYSCEF: 10/07/2026\n5 of 5","text":"--- Page 1 ---\nSUPREME COURT OF THE STATE OF NEW YORK \nCOUNTY OF ALBANY \n--------------------------------------------------------X \n \nIn the Matter of the Application of  \nGILLIO LOPES, \n \n                                                      Petitioner, \n \nFOR A JUDGMENT PURSUANT TO \nARTICLE 78 AND SECTION 3001 OF THE \nCPLR  \n \n \n                                     -against- \n \n \n \n \n \n \n \n \n \nKATHLEEN (\u201cKATHY\u201d) M. HOCHUL, in \nher official capacity as Governor of the State \nof New York, and LETITIA JAMES, in her \nofficial capacity as Attorney General of the \nState of New York, \n \n                                                      Respondents. \n--------------------------------------------------------X  \n \n \n \nIndex No.:  \n \n \n \n             \n \nAFFIRMATION IN SUPPORT OF VERIFIED PETITION FOR  \nA JUDGMENT PURSUANT TO ARTICLE 78 \nAndrew T. Miltenberg, an attorney duly admitted to practice before the Courts of the \nState of New York, affirms, pursuant to CPLR \u00a7 2106(a) and under penalty of perjury, that the \nfollowing is true and correct: \n1. \nI am a partner at the law firm of Nesenoff & Miltenberg, LLP, attorneys for \nPetitioner Gillio Lopes (\u201cPetitioner\u201d), in the instant matter. \n2. \nIn that capacity, I am fully familiar with the facts and issues set forth in this \nAffirmation, which is being submitted in further support of Petitioner\u2019s Verified Petition, pursuant \nto CPLR Article 78. \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 2\nRECEIVED NYSCEF: 10/07/2026\n1 of 5\n\n--- Page 2 ---\n3. \nI submit this affirmation in support of the accompanying Verified Petition \nchallenging Governor Kathy Hochul\u2019s October 1, 2026 designation of Attorney General Letitia \nJames as Special Prosecutor pursuant to Executive Order No. 64. Unless otherwise indicated, the \nfactual statements herein are based upon my review of the documents identified below and the \nmaterials maintained by my office in connection with its representation of Petitioner. \n4. \nPetitioner seeks a judgment pursuant to CPLR Article 78 annulling or modifying \nthe challenged determination insofar as it authorizes Attorney General James personally to direct \nthe investigation and any resulting prosecution of Petitioner. \n5. \nSubmitted with the Verified Petition are copies of the following documents: \na. Exhibit 1: The complaint filed on September 16, 2026 in Jane Doe v. Cornell \nUniversity, Inc., et al., Supreme Court, New York County (the \u201cCivil Case\u201d). \nb. Exhibit 2: The news articles referenced in the Verified Petition concerning the \nallegations and the prior handling of the matter. \nc. Exhibit 3: CNN Article regarding New York prosecutors reopening investigation.  \nd. Exhibit 4: Governor Hochul\u2019s October 1, 2026 public statement announcing the \ndesignation of Attorney General James as Special Prosecutor. \ne. Exhibit 5: Executive Order No. 64, dated October 1, 2026. \nf. Exhibit 6: Attorney General James\u2019s September 28, 2026 post on the social media \nplatform X concerning Doe\u2019s allegations. \ng. Exhibit 7: Attorney General James\u2019s October 1, 2026 public statement concerning \nher appointment as Special Prosecutor. \nh. Exhibit 8: Various news articles regarding Attorney General Letitia James\u2019s \nappointment as Special Prosecutor. \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 2\nRECEIVED NYSCEF: 10/07/2026\n2 of 5\n\n--- Page 3 ---\n6. \nPetitioner is an individual defendant named in the Civil Case. The complaint alleges \nthat Doe was sexually assaulted at a fraternity house on Cornell University\u2019s campus during the \nevening of October 19, 2024 and the early morning of October 20, 2024. These allegations concern \nthe conduct that Governor Hochul subsequently directed the Attorney General to investigate. \n7. \nOn September 28, 2026, before receiving that designation, Attorney General James \npublicly posted the following statement in response to Doe\u2019s allegations: \u201cWhat this young woman \nhas been forced to endure is horrific and unacceptable. I\u2019m holding her in my heart and in my \nprayers. To her, and to all survivors: you\u2019re not alone. We stand with you.\u201d \n8. \nThree days later, on October 1, 2026, Governor Hochul issued Executive Order No. \n64 pursuant to Executive Law \u00a7 63(2). The Executive Order directs the Attorney General to \ninvestigate the alleged conduct and, if warranted, present evidence to a grand jury and prosecute \noffenses arising from that investigation. It supersedes the Tompkins County District Attorney with \nrespect to the matter specified in the Order. \n9. \nIn announcing the designation, Governor Hochul expressed concern about the prior \nhandling of the allegations and stated that those circumstances had undermined her confidence, \nand the public\u2019s confidence, in the district attorney\u2019s ability to investigate and prosecute the matter \neffectively. \n10. \nAttorney General James subsequently issued an October 1, 2026 statement \nrepresenting that her office would conduct the investigation fully and fairly and would be guided \nby the facts and the law. \n11. \nPetitioner\u2019s challenge concerns Attorney General James\u2019s public statement before \nthe designation and its implications for her subsequent exercise of investigative and prosecutorial \ndiscretion. Petitioner contends that her characterization of Doe\u2019s experience and identification of \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 2\nRECEIVED NYSCEF: 10/07/2026\n3 of 5\n\n--- Page 4 ---\nDoe with survivors communicated acceptance of the complainant\u2019s account before Attorney \nGeneral James was entrusted with the reopened investigation. \n12. \nAlthough the September 28 statement does not expressly declare Petitioner guilty, \nPetitioner submits that it provides an objective basis to question whether Attorney General James \nwill assess Doe\u2019s credibility and potentially contradictory evidence with an open mind. Petitioner \nfurther contends that the subsequent assurance of fairness does not resolve that concern because it \nneither retracts nor explains the earlier statement. \n13. \nPetitioner recognizes that prosecutorial disqualification requires a demanding \nshowing. New York generally requires actual prejudice arising from a demonstrated conflict of \ninterest or a substantial risk of misuse of attorney client confidences, while recognizing a narrow \nexception for an exceptionally serious appearance of impropriety. People v. Adams, 20 N.Y.3d 608, \n612\u201314 (2013); Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55 (1983). The accompanying \nVerified Petition sets forth Petitioner\u2019s argument that the circumstances here warrant relief under \nthose principles. \n14. \nPetitioner has a direct interest in the challenged designation because the \ninvestigation encompasses allegations concerning Petitioner\u2019s own conduct. The authority \nconferred by Executive Order No. 64 includes decisions concerning the pursuit of evidence, \nassessment of witnesses, grand jury presentations, and whether criminal charges should be brought \nagainst Petitioner. \n15. \nPetitioner contends that Attorney General James\u2019s prior public endorsement of \nDoe\u2019s account creates a substantial risk that those decisions will be influenced by prejudgment. \nLater review may not fully remedy the consequences of investigative choices and charging \ndecisions already made under the challenged designation. Petitioner therefore requests prompt \nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 2\nRECEIVED NYSCEF: 10/07/2026\n4 of 5\n\n--- Page 5 ---\nB\n:\nAn rew\n.\nconsideration of the Petition before Attorney General James exercises fuither investigative or\nprosecutorial discretion concerning Petitioner.\n16. Accordingly, Petitioner respectfully requests a judgment pursuant to CPLR 7806\nannulling the challenged designation insofar as it authorizes Attorney General James personally to\ndirect the investigation and any resulting prosecution of Petitioner or, alternatively modiffing the\ndetermination to limit her personal participation, supervision, and control to the extent warranted\nby the Court's findings; remitting the matter to Governor Hochul for reconsideration consistent\nwith the judgment and applicable law; and granting such other and further relief as the Court deems\njust and proper.\nI affirm this 7th day of October,2026,under the penalties of perjury under the laws of New\nYork, which may include a fine or imprisonment, that the foregoing is true, except as to matters\nalleged on information and belief and as to those matters, I believe it to be true, and I understand\nthat this document may be filed in an action or proceeding in a court of law.\nDated:New York, New York\nOctober 712026\nEsq.\nFILED: ALBANY COUNTY CLERK 10/07/2026 06:21 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 2\nRECEIVED NYSCEF: 10/07/2026\n5 of 5","thumbnailUrl":"https://lucycraig.blog/media/442/thumb.webp","transcriptStatus":"not_applicable","transcriptText":"","url":"https://lucycraig.blog/media/442"}