{"@context":"https://schema.org","@type":"DigitalDocument","altText":"911974_26_Gillio_Lopes_v_Kathleen_M_Hochul_et_al_MEMORANDUM_OF_LAW_I_24.pdf","alternateName":"911974_26_Gillio_Lopes_v_Kathleen_M_Hochul_et_al_MEMORANDUM_OF_LAW_I_24.pdf","caption":"911974_26_Gillio_Lopes_v_Kathleen_M_Hochul_et_al_MEMORANDUM_OF_LAW_I_24.pdf","contentUrl":"https://lucycraig.blog/media/671/raw","datePublished":"2026-10-27T22:37:32+00:00","description":"911974_26_Gillio_Lopes_v_Kathleen_M_Hochul_et_al_MEMORANDUM_OF_LAW_I_24.pdf","encodingFormat":"application/pdf","identifier":"671","isAccessibleForFree":true,"machineReadable":{"json":"https://lucycraig.blog/media/671/index.json","markdown":"https://lucycraig.blog/media/671/index.md"},"name":"911974_26_Gillio_Lopes_v_Kathleen_M_Hochul_et_al_MEMORANDUM_OF_LAW_I_24","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 \nKATHY HOCHUL, in her official capacity as \nGovernor of the State of New York, and \nLETITIA JAMES, in her official capacity as \nAttorney General of the State of New York, \n \n                                                      Respondents. \n--------------------------------------------------------X  \n \n \n \nIndex No.: 911974/2026 \n \n \n \n             \n \nREPLY MEMORANDUM OF LAW IN RESPONSE TO RESPONDENTS\u2019 ANSWER AND \nOPPOSITION TO THE VERIFIED PETITION \n \n \n \n \nNESENOFF & MILTENBERG, LLP \nAndrew T. Miltenberg, Esq. \nStuart Bernstein, Esq.  \nTara J. Davis, Esq.  \nKirsten E. Roy, Esq.  \n363 Seventh Avenue, Fifth Floor \nNew York, New York 10001 \n(212) 736-4500 \n \nAttorneys for Petitioner \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n1 of 26\n\n--- Page 2 ---\ni \n \nTABLE OF CONTENTS \nINTRODUCTION ...........................................................................................................................1 \nI. \nPETITIONER\u2019S CLAIMS ARE JUSTICIABLE ................................................................2 \nA. \nPetitioner\u2019s challenge to the Attorney General\u2019s qualification presents a \nlegal question appropriate for judicial resolution. ...................................................4 \n1. \nThe Governor\u2019s superseder authority does not resolve the separate \nquestion of disqualification. .........................................................................4 \n2. \nReview of a demonstrated disqualification is consistent with the \nLegislature\u2019s allocation of prosecutorial authority. ......................................7 \nB. \nThe claims concern an existing appointment and an allegedly existing \ndisqualification. ........................................................................................................8 \nC. \nPetitioner has a personal stake in the challenged exercise of prosecutorial \nauthority. ................................................................................................................10 \n1. \nPetitioner alleges an individualized injury. ................................................10 \n2. \nThe asserted injury implicates the protections Petitioner seeks to \nenforce........................................................................................................12 \nII. \nRESPONDENTS HAVE NOT ESTABLISHED THAT THE PETITION IS \nPROCEDURALLY BARRED OR SUBSTANTIVELY WITHOUT MERIT...................13 \nA. \nCounty Law \u00a7 701(6) does not expressly make an application by the \nAttorney General the exclusive means of obtaining judicial review of \ndisqualification. ......................................................................................................13 \nB. \nPetitioner has established that prohibition reaches the challenged conduct \nand that a clear legal right to relief exists. .............................................................14 \n1. \nThe challenge concerns the prosecutor\u2019s legal authority to proceed, \nnot an individual investigative decision. ....................................................14 \n2. \nThe Attorney General\u2019s statement must be assessed under the \ngoverning disqualification standard. ..........................................................15 \nC. \nThe Court should exercise its discretion to grant appropriately limited \nrelief. ......................................................................................................................17 \n1. \nThe governing discretionary factors support relief. ...................................16 \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n2 of 26\n\n--- Page 3 ---\nii \n \n2. \nRespondents overstate the categorical inapplicability of ordinary \ndisqualification principles. .........................................................................17 \n3. \nRespondents\u2019 reliance on Rivera does not establish that personal \ncredibility endorsements are proper. ..........................................................18 \nD. \nAny alternative challenge to the Governor\u2019s determination rests on a \npreserved, reviewable legal theory. ........................................................................19 \nCONCLUSION ..............................................................................................................................19 \n \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n3 of 26\n\n--- Page 4 ---\niii \n \nTABLE OF AUTHORITIES \nCases \nMatter of Abelove v. Cuomo,  \n57 Misc. 3d 668 (Sup. Ct. Albany County 2017)...............................................................15, 18 \nMatter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. \nConservation,  \n23 N.Y.3d 1 (2014) ................................................................................................................... 11 \nCenter for Independence of the Disabled v. Metropolitan Transp. Auth.,  \n184 A.D.3d 197 (1st Dep\u2019t 2020) ...........................................................................................2, 5 \nChurch of St. Paul & St. Andrew v. Barwick,  \n67 N.Y.2d 510 (1986) .................................................................................................................9 \nCuomo v. Long Is. Light. Co.,  \n71 N.Y.2d 349 (1988) .................................................................................................................8 \nGrand S. Point, LLC v. Bassett,  \n230 A.D.3d 49 (3d Dep\u2019t 2024) .................................................................................................9 \nHollandale Apartments & Health Club, LLC v. Bonesteel,  \n173 A.D.3d 55 (3d Dep\u2019t 2019) .................................................................................................8 \nIn re Grand Jury Investigation,  \n696 F.2d 449 (6th Cir. 1982) ....................................................................................................10 \nIn re Grand Jury Proceedings,  \n700 F. Supp. 626 (D.P.R. 1988) ...............................................................................................10 \nIn re Grand Jury Subpoena Served Upon Doe,  \n781 F.2d 238 (2d Cir. 1986) (en banc) .....................................................................................10 \nMatter of Johnson v. Pataki,  \n91 N.Y.2d 214 (1997) ...........................................................................................................5, 19 \nMatter of Mental Hygiene Legal Serv. v. Daniels,  \n33 N.Y.3d 44 (2019) ................................................................................................................. 11 \nMatter of People v. Trump Org., Inc.,  \n205 A.D.3d 625 (1st Dep\u2019t 2022) .............................................................................................16 \nMatter of Percinthe v. Department of Corr. & Community Supervision,  \n227 A.D.3d 1347 (3d Dep\u2019t 2024) .............................................................................................4 \nPeople v. Adams,  \n20 N.Y.3d 608 (2013) ....................................................................................................... passim \nPeople v. National Rifle Assn. of Am., Inc.,  \n223 A.D.3d 84 (1st Dep\u2019t 2023) ...............................................................................................16 \nPeople v. Rivera,  \n206 A.D.3d 1356 (3d Dep\u2019t 2022) ...........................................................................................18 \nPeople v. Santorelli,  \n95 N.Y.2d 412 (2000) ...............................................................................................................12 \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n4 of 26\n\n--- Page 5 ---\niv \n \nPolice Benevolent Assn. of N.Y. State Troopers, Inc. v. New York State Div. of State Police,  \n40 A.D.3d 1350 (3d Dep\u2019t 2007) ...............................................................................................4 \nRush v. Mordue,  \n68 N.Y.2d 348 (1986) ...............................................................................................................17 \nSchulz v. Cuomo,  \n133 A.D.3d 945 (3d Dep\u2019t 2015) ...............................................................................................4 \nMatter of Schumer v. Holtzman,  \n60 N.Y.2d 46 (1983) ......................................................................................................... passim \nMatter of Sedore v. Epstein,  \n56 A.D.3d 60 (2d Dep\u2019t 2008) ...................................................................................................2 \nMatter of Sierra Club v. Village of Painted Post,  \n26 N.Y.3d 301 (2015) ............................................................................................................... 11 \nMatter of Soares v. Herrick,  \n20 N.Y.3d 139 (2012) ...................................................................................................14, 15, 17 \nSociety of Plastics Indus., Inc. v. County of Suffolk,  \n77 N.Y.2d 761 (1991) ...............................................................................................................12 \nMatter of Stevens v. New York State Div. of Criminal Justice Servs.,  \n40 N.Y.3d 505 (2023) ...............................................................................................................10 \nSullivan v. New York State Joint Commn. on Pub. Ethics,  \n207 A.D.3d 117 (3d Dep\u2019t 2022) ...............................................................................................9 \nMatter of Working Families Party v. Fisher,  \n23 N.Y.3d 539 (2014) .........................................................................................................10, 14 \nConstitutional Provisions \nN.Y. Const. art. IV, \u00a7 3 .....................................................................................................................1 \nRules \nCPLR 506(b) ..................................................................................................................................13 \nCPLR 7803(2) ................................................................................................................................18 \nCPLR 7803(3) ................................................................................................................................18 \nCPLR 7806.....................................................................................................................................19 \nStatutes \nCounty Law \u00a7 701(6) .......................................................................................................7, 8, 13, 14 \nExecutive Law \u00a7 63(2) .......................................................................................................1, 4, 7, 12 \nOther Authorities \nExecutive Order No. 64 ......................................................................................................... passim \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n5 of 26\n\n--- Page 6 ---\n1 \n \nINTRODUCTION \nWhile the Governor\u2019s superseder authority is broad, it is not unfettered. Executive Law \u00a7 \n63(2) does not authorize the Governor to disregard her legal obligations governing the prosecutor \nshe appoints. Indeed, the Governor must \u201ctake care that the laws are faithfully executed.\u201d N.Y. \nConst. art. IV, \u00a7 3. (Emphasis added). That obligation cannot be satisfied by invoking executive \npower to excuse prosecutorial bias. Executive Order No. 64 (\u201cEO 64\u201d or the \u201cOrder\u201d) expressly \nrequires an objective review and a \u201cfull, reasoned, and independent investigation.\u201d The Order \ninvokes concerns about conflict, bias, and the public perception of bias as grounds for superseding \nthe local District Attorney. Respondents cannot invoke those concerns to justify the appointment \nof a special prosecutor, while then dismissing evidence of the exact same harm and prejudgment \nby the new prosecutor selected by the Governor to conduct the investigation. \nBefore her appointment, Attorney General James publicly stated, on the Attorney General \nOffice\u2019s official account: \u201cWhat this young woman has been forced to endure is horrific and \nunacceptable. I\u2019m holding her in my heart and in my prayers. To her, and to all survivors: you\u2019re \nnot alone. We stand with you.\u201d Pet. \u00b6 7. By declaring what Jane Doe \u201chas been forced to endure\u201d \nand characterizing her as a \u201csurvivor,\u201d the Attorney General  treated the alleged assault as an \nestablished crime before conducting the proposed independent/unbiased investigation she was \nsubsequently appointed to undertake. Her declaration that \u201c[w]e stand with you\u201d further aligned \nher and her office with Jane Doe\u2019s account. Respondents\u2019 classification of these words as mere \nempathy fails to confront their substance. The statement publicly declared as true, the underlying \nallegations that the Attorney General\u2019s independent/unbiased investigation was supposed to \nevaluate. \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n6 of 26\n\n--- Page 7 ---\n2 \n \nThat prejudgment is particularly consequential because those same allegations support \nDoe\u2019s pending civil claims against Petitioner, a lawsuit prominently referenced in EO 64. A \nprosecutor\u2019s obligations run to the public, and competing private loyalties cannot compromise the \nduty to do justice. See Matter of Sedore v. Epstein, 56 A.D.3d 60, 66\u201368 (2d Dep\u2019t 2008). A \nprosecutor cannot wield the criminal power of the State while maintaining a competing \ncommitment to vindicate a private civil litigant\u2019s allegations. Petitioner challenges the substantial \nrisk that the Attorney General\u2019s public endorsement will influence the exercise of that power, \nturning an independent inquiry into a foregone conclusion to substantiate an account she has \nalready embraced. \nThe Governor\u2019s power to appoint does not resolve the Attorney General\u2019s qualification to \nserve. Nor does the investigation\u2019s preliminary stage erase the prejudgment that preceded it. \nPetitioner has identified specific conduct undertaken by the appointed Attorney General, made \nbefore the appointment, bearing directly on the independence EO 64 requires. Respondents must \nanswer that disqualification claim on its substance. Repeating that the Governor possesses \nsuperseder authority does not establish that the designated prosecutor can lawfully exercise it in \nthese circumstances. The Court should reject Respondents\u2019 attempt to foreclose review and grant \nthe relief requested in the Petition. \nI.  \nPETITIONER\u2019S CLAIMS ARE JUSTICIABLE \nRespondents\u2019 argument that Petitioner\u2019s claims are not justiciable fails to distinguish the \nGovernor\u2019s authority to appoint a special prosecutor from the Attorney General\u2019s qualification to \nserve in this particular matter. Indeed, Petitioner challenges the Attorney General\u2019s qualification \nto exercise that authority in this matter after publicly prejudging the allegations she was appointed \nto independently investigate. Courts may enforce legal obligations without assuming the \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n7 of 26\n\n--- Page 8 ---\n3 \n \nexecutive\u2019s policymaking role. See Center for Independence of the Disabled v. Metropolitan \nTransp. Auth., 184 A.D.3d 197, 208\u201309 (1st Dep\u2019t 2020); People v. Adams, 20 N.Y.3d 608, 612\u2013\n13 (2013).  \nPetitioner challenges the Attorney General\u2019s existing appointment based on her prior public \nendorsement of Doe\u2019s allegations. Before her appointment, Attorney General James publicly \ndescribed what Doe \u201chas been forced to endure,\u201d addressed her as a \u201csurvivor,\u201d and declared, \n\u201c[w]e stand with you.\u201d Pet. \u00b6 7. The Governor then appointed her to investigate those same \nallegations, which underlie the civil action where Petitioner is one of the named defendants. \nRespondents expressly admit that Petitioner\u2019s conduct \u201cmay fall within the scope of the \ninvestigation authorized by EO 64.\u201d Answer \u00b6\u00b6 59, 69. They further admit paragraph 65 of the \nPetition, which alleges that Attorney General James\u2019s authority encompasses witness-credibility \nassessments, the pursuit of evidence, grand jury presentations, and charging decisions concerning \nPetitioner. Answer \u00b6 70; Pet. \u00b6 65. These admissions establish Petitioner\u2019s specific connection to \nthe investigation and the consequential decisions entrusted to Attorney General James. Although \nRespondents have not admitted that Petitioner will be charged or prejudiced, his concern relates \ndirectly to prosecutorial authority they acknowledge extends to allegations involving him. As such, \nPetitioner\u2019s concern is concrete: the official entrusted with an independent investigation has \nalready publicly made a determination of the facts by accepting Doe\u2019s version of events before \nundertaking that investigation, in accordance with principles of due process. Respondents cannot \ndispose of that concern by relying on the Governor\u2019s appointment power or describing the \ninvestigation as merely preliminary. Neither addressed the central issue i.e., whether the Attorney \nGeneral\u2019s public commitment to Doe\u2019s account creates a substantial risk of prejudice to Petitioner. \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n8 of 26\n\n--- Page 9 ---\n4 \n \nMoreover, the authorities on which Respondents rely concern materially different \ncircumstances. In Schulz, the alleged injury depended on voter approval of a future constitutional \nconvention, the election of particular delegates, and their subsequent actions. Schulz v. Cuomo, \n133 A.D.3d 945, 947\u201348 (3d Dep\u2019t 2015). In Percinthe, the challenge to expired parole conditions \nwas moot, while the request to prevent their reimposition upon a future release depended on a \ndetermination that might never occur. Matter of Percinthe v. Department of Corr. & Community \nSupervision, 227 A.D.3d 1347, 1348 (3d Dep\u2019t 2024). Police Benevolent Association involved a \nfacial challenge to potential arbitrary applications of a policy; although the policy had been applied \nto individual plaintiffs, they did not pursue claims challenging its application to their particular \ncircumstances. Police Benevolent Assn. of N.Y. State Troopers, Inc. v. New York State Div. of State \nPolice, 40 A.D.3d 1350, 1352\u201353 (3d Dep\u2019t 2007). The foregoing decisions do not resolve whether \nthe Governor\u2019s  appointment creates a present and substantial risk of prejudice to Petitioner. Here, \nPetitioner challenges a specific appointment based on the designated prosecutor\u2019s previously \nvoiced public endorsement of the allegations she is charged with investigating. As explained \nbelow, the circumstances of this appointment satisfy the requirements for judicial review. \nA.  \nPetitioner\u2019s challenge to the Attorney General\u2019s qualification presents a legal question \nappropriate for judicial resolution. \nRespondents contend that judicial review would impermissibly interfere with the \nGovernor\u2019s superseder authority, the Attorney General\u2019s prosecutorial discretion, and the \nLegislature\u2019s allocation of prosecutorial power. (Resp. Br. at 6\u201312.) Indeed, Respondents conflate \nthe authority to designate a prosecutor with the designated prosecutor\u2019s legal qualification to serve \nin a particular matter. Petitioner acknowledges the Governor\u2019s broad authority under Executive \nLaw \u00a7 63(2). The question presented is whether Attorney General James\u2019s prior public \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n9 of 26\n\n--- Page 10 ---\n5 \n \nendorsement of the allegations she was subsequently appointed to investigate creates a \ndisqualification under established law. \n1. \nThe Governor\u2019s superseder authority does not resolve the separate question of   \ndisqualification. \n \nRespondents principally rely on Matter of Johnson v. Pataki, 91 N.Y.2d 214, 223\u201324 \n(1997), which recognizes the Governor\u2019s broad discretion to supersede a district attorney and \ngenerally confines judicial review to whether constitutional or statutory authority exists for that \naction. Petitioner does not ask this Court to depart from that rule. He does not contend that the \nGovernor was required to establish the necessity of supersession, explain her decision to the \nCourt\u2019s satisfaction, or leave the investigation with the Tompkins County District Attorney. Rather, \nPetitioner challenges Attorney General James\u2019s personal qualification to exercise the authority \nconferred upon her. Johnson did not decide whether a designated prosecutor could proceed \nnotwithstanding an independently established disqualification. Its protection of the Governor\u2019s \ndiscretionary superseder decision therefore does not resolve the distinct issue presented here. \nThe distinction matters because the presence of executive discretion does not, by itself, \nforeclose judicial enforcement of an existing legal obligation. Courts must refrain from assuming \nthe policy choices reserved to the political branches, but that limitation does not render every claim \naffecting executive action nonjusticiable. Center for Independence of the Disabled v. Metropolitan \nTransp. Auth., 184 A.D.3d 197, 208\u201309 (1st Dep\u2019t 2020). Here, the asserted restriction is the law \ngoverning prosecutorial disqualification. Petitioner seeks application of that restriction to the \nofficial entrusted with investigating the allegations against him, not judicial supervision of how a \nqualified prosecutor should conduct the investigation.  \nOrdinarily, disqualification requires prejudice attributable to an established conflict or a \nsubstantial danger that an attorney will misuse confidential information. The objector must \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n10 of 26\n\n--- Page 11 ---\n6 \n \ndemonstrate actual prejudice or a sufficiently serious risk of prejudice to warrant intervention. \nMatter of Schumer v. Holtzman, 60 N.Y.2d 46, 55 (1983). Separately, People v. Adams,  recognizes \na narrow category of cases in which an exceptionally serious appearance of impropriety warrants \ndisqualification. 20 N.Y.3d 608, 612\u201313 (2013). That inquiry considers whether the record \nobjectively calls into question the prosecutor\u2019s exercise of discretion according to the merits and \nlegitimate prosecutorial considerations.  \nBefore receiving the designation as special prosecutor, Attorney General James publicly \ndescribed what Doe \u201chas been forced to endure,\u201d addressed her together with \u201call survivors,\u201d and \ndeclared, \u201cWe stand with you.\u201d Pet. \u00b6 7. Petitioner contends that these statements communicated \nacceptance of Doe\u2019s account before Attorney General James was assigned to assess its credibility \nand determine whether criminal charges were warranted. The concern is therefore specific to the \nallegations under investigation, specific to EO 64, and to the official now responsible for \nevaluating them. Whether that public commitment establishes the exceptional risk of prejudice \nrequired for disqualification is a legal question that Respondents cannot answer merely by stating \nthat the Governor possesses superseder authority. \nIn Schumer, the Court declined to adjudicate the district attorney\u2019s personal disqualification \nbecause the asserted political antagonism and potential involvement of former employees did not \nestablish a sufficiently developed basis for intervention. 60 N.Y.2d at 55\u201356. In this case, Petitioner \nrelies on a very specific and very public statement addressing the complainant and allegations \nentrusted to Attorney General James. Following Attorney General James\u2019 tweet, the Governor \nissued EO 64 which specifically references the concerns raised by Doe and the public, and now in \nthis Petition, \u201cthat this incident cannot be fully and thoroughly investigated or prosecuted without \nconflict or bias, or the public perception of conflict or bias\u201d, noting that the public interest requires \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n11 of 26\n\n--- Page 12 ---\n7 \n \nan \u201cobjective review.\u201d The next day, on September 29, 2026, the Governor referred to the \nallegations as \u201cnothing short of horrifying\u201d and expressed support for the district attorney\u2019s \ndecision to reopen the criminal investigation. Pet. Ex. 4. Notwithstanding her stated support of the \nlocal District Attorney, the Governor appointed Attorney General James, despite her expressed \nprejudgment , which mirrors the reason the Governor inserted herself in this matter in the first \nplace. Unlike Schumer, this matter does not depend upon whether a potential witness later becomes \nimplicated.  \nFurthermore, Adams does not support Respondents\u2019 contention that disqualification \nprinciples apply only to judicial appointments. Resp. Br. at 31\u201332. Adams concerned the refusal to \ndisqualify an existing district attorney\u2019s office and appoint a replacement. The Court reversed, \nfinding an objectively serious appearance that prosecutorial discretion had been influenced by the \ncomplainant\u2019s position rather than legitimate prosecutorial considerations. 20 N.Y.3d at 610\u201314. \nIts reasoning therefore concerns the prosecutor\u2019s qualification to continue, not simply the validity \nof a judicial appointment. Although Adams arose after charges were filed and does not \nindependently establish the availability of pre-prosecution review here, its substantive \ndisqualification standard directly informs Petitioner\u2019s claim.  \n2. \nReview of a demonstrated disqualification is consistent with the Legislature\u2019s allocation of \nprosecutorial authority. \nRespondents also argue that judicial review would override the Legislature\u2019s decision to \nallocate superseder authority to the Governor. (Resp. Br. at 11\u201312.) Executive Law \u00a7 63(2) assigns \nthe Attorney General both the prosecutorial powers and the corresponding duties otherwise \nexercised by the district attorney. The statute supplies authority to act; it does not expressly exempt \nthe designated prosecutor from otherwise applicable disqualification principles. Applying those \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n12 of 26\n\n--- Page 13 ---\n8 \n \nprinciples would address a claimed legal restriction on the exercise of authority, rather than create \nan additional policy prerequisite to the Governor\u2019s decision to supersede.  \nCounty Law \u00a7 701(6) does not establish otherwise. That subdivision expressly addresses \ncircumstances in which the Attorney General acts in place of a district attorney and is disqualified. \nIt provides a mechanism for a superior criminal court in the appropriate county to appoint a \nreplacement upon articulable reasons supplied by the Attorney General. The requirements \ngoverning replacement do not establish that the underlying question of qualification is a political \nquestion beyond judicial determination. The statute itself contemplates that the Attorney General \nmay be disqualified while exercising substituted prosecutorial authority.  \nWhether Section 701(6) limits the procedural route or relief available here must be \naddressed on the merits, as discussed further below. The statute is inapplicable here as it does not \nresolve whether Attorney General James\u2019s prior public statements satisfy the substantive standard \nfor disqualification.  \nAs such, the Court should reject Respondents\u2019 argument that the political question doctrine \nforecloses consideration of Petitioner\u2019s claim merely because the challenged authority originated \nin an exercise of executive power. \nB.  \nThe claims concern an existing appointment and an allegedly existing \ndisqualification. \nRespondents argue that Petitioner\u2019s claims are premature because the investigation may \nnever lead to an indictment or prosecution. (Resp. Br. at 12\u201314.) Petitioner challenges Attorney \nGeneral James\u2019 qualification to direct the investigation itself. EO No. 64 has already designated \nher to investigate allegations involving Petitioner, and the statement underlying his disqualification \nclaim predates that designation. The question is whether Attorney General James\u2019s prior \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n13 of 26\n\n--- Page 14 ---\n9 \n \nendorsement of the allegations made against Petitioner creates a sufficiently substantial risk of \nprejudice to warrant review now. \nIt is well settled \u201cthat courts do not give advisory opinions\u2014that is, determinations that \npurport to resolve issues that depend on events that may never occur and are outside the control of \nthe parties.\u201d Hollandale Apartments & Health Club, LLC v. Bonesteel, 173 A.D.3d 55, 59, 100 \nN.Y.S.3d 711 (2019); Cuomo v Long Is. Light. Co., 71 NY2d 349, 354 (1988). Where \u201canticipated \nharm is insignificant, remote or contingent, the controversy is not ripe.\u201d Church of St. Paul & St. \nAndrew v. Barwick, 67 N.Y.2d 510, 519-20 (1986) (internal brackets omitted). Thus, to determine \nwhether a governmental action is ripe for review, the court must consider  \u201cwhether the issues \ntendered are appropriate for judicial resolution\u201d and assess \u201cthe hardship to the parties if judicial \nrelief is denied.\u201d Sullivan v. New York State Joint Commn. on Pub. Ethics, 207 A.D.3d 117, 130 \n(3d Dep\u2019t 2022); see Grand S. Point, LLC v. Bassett, 230 A.D.3d 49, 60 (3d Dep\u2019t 2024). \n \nThe alleged harm here is substantial and directly concerns Petitioner. He is a named \ndefendant in the civil action containing allegations Attorney General James has been appointed to \ninvestigate. Pet. \u00b6\u00b6 28\u201330, 56. Her assessment of witnesses and decisions about which evidence to \npursue will shape the case against him before any charges are filed. Pet. \u00b6\u00b6 57\u201358. The basis for \nthe claimed disqualification also already exists: she publicly endorsed Doe\u2019s account before \nreceiving authority to investigate it.  \nBecause the statement establishes disqualifying prejudgment, the problem arises when she \ndirects the investigation, not only if she later obtains an indictment. The Court can evaluate her \nstatement, the authority she now holds, and the resulting risk of prejudice on the existing record. \nWhether the investigation ultimately produces criminal charges does not answer whether she is \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n14 of 26\n\n--- Page 15 ---\n10 \n \nqualified to lead it or whether she is inherently biased due to her public endorsement of Doe\u2019s \nallegations. \nThe alleged prejudice likewise concerns decisions made before indictment. Attorney \nGeneral James\u2019s authority encompasses the assessment of witnesses, selection of evidence, and \ndirection of the investigation. Pet. \u00b6\u00b6 56\u201358. If her prior statement establishes a disqualifying \nprejudgment, waiting until those decisions have shaped the record would render a later review \nfutile. The purported uncertainty of a future prosecution does not fully answer the injury alleged \nby Petitioner. \u201cIt is not in the public interest to allow a prosecutor to carry out a lengthy \ninvestigation when there is doubt that his or her appointment is valid, and to run the risk that the \nprocess will have to start over again with a different prosecutor.\u201d Fisher, 23 N.Y.3d at 544. \nSchumer\u2019s holding was expressly tied to the record presented. The Court invalidated an \nunauthorized delegation of prosecutorial authority while finding the separate disqualification claim \npremature because the asserted political antagonism and potential conflicts did not establish \ngrounds for intervention. Schumer, 60 N.Y.2d at 53\u201356 (\u201cthe application for disqualification was \npremature and not justiciable on the present record\u201d) (Emphasis added). Here, Petitioner relies on \nan official statement addressing the very allegations Attorney General James was subsequently \nassigned to investigate. Given that the statement and designation establish a sufficiently immediate \nrisk of prejudice, the absence of an indictment does not resolve that inquiry by itself.1 \nC.  \nPetitioner has a personal stake in the challenged exercise of prosecutorial authority. \n \n1 The authorities Respondents rely on do not establish that preindictment review is barred. In re Grand Jury Subpoena \nServed Upon Doe, 781 F.2d 238, 245 (2d Cir. 1986) (en banc), concerned potential disqualification of defense counsel \nwhose testimony might require withdrawal, not a prosecutor\u2019s qualification. In In re Grand Jury Proceedings, 700 F. \nSupp. 626, 630\u201331 (D.P.R. 1988), the individual prosecutor had already recused himself, and the court rejected \nspeculative grounds for disqualifying the entire office. Likewise, In re Grand Jury Investigation, 696 F.2d 449, 451 \n(6th Cir. 1982), rejected conclusory conflict allegations while leaving the general scope of preindictment supervisory \nauthority unresolved. Petitioner relies on the designated prosecutor\u2019s own public statement concerning the allegations \nshe was assigned to investigate and asks the Court to assess that existing record under the demanding standard for \nintervention. \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n15 of 26\n\n--- Page 16 ---\n11 \n \nTo establish standing, \u201c[a] petitioner challenging government agency action pursuant to an \narticle 78 petition has the burden of demonstrating an injury in fact and that the alleged injury falls \nwithin the zone of interests or concerns sought to be promoted or protected by the statutory \nprovision under which the government has acted.\u201d Matter of Stevens v. New York State Div. of \nCriminal Justice Servs., 40 N.Y.3d 505, 515 (2023) (cleaned up). \nPetitioner has a personal stake in this challenge because Attorney General James has been \nassigned to investigate allegations against him after publicly endorsing the complainant\u2019s account, \ncreating the specific risk of prejudice he seeks to prevent. \n1.  \nPetitioner alleges an individualized injury. \n\u201cThe injury-in-fact requirement necessitates a showing that the party has an actual legal \nstake in the matter being adjudicated and has suffered a cognizable harm that is not tenuous, \nephemeral, or conjectural but is sufficiently concrete and particularized to warrant judicial \nintervention.\u201d Matter of Mental Hygiene Legal Serv. v. Daniels, 33 NY3d 44, 50 (2019) (cleaned \nup). See also Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. \nConservation, 23 NY3d 1, 7 (2014). However, standing rules should not be applied \u201cin an overly \nrestrictive manner where the result would be to completely shield a particular action from judicial \nreview.\u201d Matter of Sierra Club v. Village of Painted Post, 26 NY3d 301, 311 (2015); Matter of \nAssociation for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 N.Y.3d \n1, 6\u20137 (2014) (\u201cstanding rules should not be heavy-handed\u201d).  \nRespondents attempt to portray the alleged injury as speculative with respect to how the \ninvestigation might proceed. (Resp. Br. at 16\u201318.) However, Petitioner\u2019s claim rests on identified \nfacts: he is a named defendant in the related civil case, the allegations concerning him fall within \nEO No. 64, and Attorney General James publicly endorsed Doe\u2019s account before receiving \nauthority to investigate it. Pet. \u00b6\u00b6 7, 16\u201317, 28\u201333, 56. \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n16 of 26\n\n--- Page 17 ---\n12 \n \nPetitioner is faced with the situation where the prosecutor evaluating the allegations against \nhim has already prejudged the allegations in Doe\u2019s favor. Moreover, the pending risk reaches \ninvestigative decisions preceding any prosecution. It is attributable to EO No. 64, which placed \nthose decisions under Attorney General James\u2019s control, and the requested limitation on her \nparticipation would address its asserted source. Pet. \u00b6\u00b6 57\u201358, 60\u201363. It is painfully clear that \nAttorney General James has already violated her oath and obligation to conduct an independent \ninvestigation when making her very public statement of accepting as true Doe\u2019s allegations. The \nAttorney General\u2019s own words warrant disqualification in this matter. \n2.  \nThe asserted injury implicates the protections Petitioner seeks to enforce. \nRespondents separately argue that Executive Law \u00a7 63(2) protects only institutional \ninterests in allocating prosecutorial authority. (Resp. Br. at 19\u201320.) The zone of interests inquiry \nrequires a connection between the injury alleged and the purposes of the governing law. Society of \nPlastics Indus., Inc. v. County of Suffolk, 77 N.Y.2d 761, 773\u201374 (1991). That connection exists \nhere because Section 63(2) transfers prosecutorial duties along with prosecutorial powers. \nA prosecutor\u2019s duties include protecting fairness and the integrity of the criminal process. \nSee People v. Santorelli, 95 N.Y.2d 412, 420\u201321 (2000). \u201cProsecutors play a distinctive role in the \nsearch for truth in criminal cases. As public officers they are charged not simply with seeking \nconvictions but also with ensuring that justice is done. This role gives rise to special \nresponsibilities--constitutional, statutory, ethical, personal--to safeguard the integrity of criminal \nproceedings and fairness in the criminal process.\u201d Id.  \nThe disqualification rules protect affected individuals against prosecutorial prejudice and, \nin exceptional circumstances, an objectively intolerable appearance of impropriety. Adams, 20 \nN.Y.3d at 612\u201313. Petitioner seeks enforcement of those restrictions as they apply to authority over \nallegations involving him. \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n17 of 26\n\n--- Page 18 ---\n13 \n \nFurthermore, despite Respondents\u2019 contention, the statute\u2019s allocation of executive power \ndoes not eliminate that personal interest. Indeed, Schumer permitted an investigation\u2019s prospective \nsubject to challenge an unlawful delegation of prosecutorial authority, although finding the \nseparate personal disqualification claim was premature. 60 N.Y.2d at 53\u201356. Respondents cannot \ndefeat standing merely by describing the underlying grant of authority as institutional. Whether \nPetitioner established the prerequisites for relief here is a separate inquiry for the Court to consider.  \nII.  RESPONDENTS HAVE NOT ESTABLISHED THAT THE PETITION IS \nPROCEDURALLY BARRED OR SUBSTANTIVELY WITHOUT MERIT \nA.  \nCounty Law \u00a7 701(6) does not expressly make an application by the Attorney General \nthe exclusive means of obtaining judicial review of disqualification. \nRespondents argue that County Law \u00a7 701(6) forecloses this proceeding because only the \nAttorney General may initiate disqualification proceedings, and any application must be brought \nin the superior criminal court where the matter is triable. (Resp. Br. at 20\u201322.) Their argument \nconflates the statutory procedure for appointing a replacement as necessarily controlling whether \nan adverse party may obtain review of the Attorney General\u2019s qualification to proceed. \nSection 701(6)(b) addresses circumstances in which the Attorney General and her \nassistants are disqualified and authorizes a superior criminal court to appoint a replacement upon \narticulable reasons supplied by the Attorney General. Those requirements govern the appointment \nauthorized by that subdivision. The text of the statute does not expressly state that the Attorney \nGeneral alone may raise a disqualification issue or that an adverse party is barred from seeking \notherwise available judicial review. County Law \u00a7 701(6). Petitioner\u2019s proposed distinction gives \neffect to the statutory requirements without making the challenged prosecutor\u2019s willingness to seek \nreplacement a prerequisite to every judicial inquiry into her qualification. \nThe subdivision\u2019s broad applicability and \u201cnotwithstanding\u201d clause must also be given \neffect. Petitioner does not ask this Court to disregard those provisions or appoint a replacement \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n18 of 26\n\n--- Page 19 ---\n14 \n \nthrough a procedure inconsistent with the statute. He seeks a determination concerning Attorney \nGeneral James\u2019s personal participation and relief limited to the legal defect established. Pet. \u00b6\u00b6 \n60\u201363. Whether Article 78 supplies that remedy must be determined under the authorities \ngoverning Article 78; the existence of a replacement procedure does not itself answer that question. \nRespondents\u2019 venue objection likewise depends on which proceeding is properly before \nthe Court. If this Article 78 proceeding is available, CPLR 506(b) permits commencement where \nthe challenged determination was made or the respondent\u2019s principal office is located. The Petition \nalleges those connections to Albany County. Pet. \u00b6 15. That does not dispense with Section \n701(6)\u2019s requirements for an appointment under that provision, but Respondents cannot resolve \nthe availability of Article 78 simply by applying the venue requirement governing a different  \napplication. \nB.  \nPetitioner has established that prohibition reaches the challenged conduct and that a \nclear legal right to relief exists. \n1.  \nThe challenge concerns the prosecutor\u2019s legal authority to proceed, not an individual \ninvestigative decision. \nRespondents argue that prohibition cannot reach either the Governor\u2019s designation or the \nAttorney General\u2019s investigation because both involve executive action. (Resp. Br. at 22\u201326.) \nProhibition is available only to restrain judicial or quasi-judicial action taken without or in excess \nof authority, upon a clear legal right to relief. It cannot correct ordinary legal errors or restrain \npurely executive investigative activity. Matter of Soares v. Herrick, 20 N.Y.3d 139, 145 (2012). \nPetitioner\u2019s claim concerns whether Attorney General James may personally exercise \nprosecutorial authority in this matter after publicly endorsing the allegations entrusted to her. He \ndoes not ask the Court to decide which witnesses should be interviewed or how particular evidence \nshould be presented. For example, Matter of Working Families Party v. Fisher, 23 N.Y.3d 539, \n544\u201345 (2014), distinguishes a challenge to a prosecutor\u2019s appointment from an attempt to control \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n19 of 26\n\n--- Page 20 ---\n15 \n \ninvestigative decisions by a validly appointed prosecutor. The Court permitted review of a judicial \nappointment during an investigation, emphasizing the value of resolving the prosecutor\u2019s authority \npromptly. Id. Although Working Families Party involved a court appointed prosecutor, it \nestablishes that the investigative stage alone does not bar review of a challenge to the validity of a \nprosecutor\u2019s appointment. Petitioner relies on that distinction because he challenges Attorney \nGeneral James\u2019s qualification to proceed, not her individual investigative decisions. The case does \nnot independently resolve whether this personal disqualification challenge to a prosecutor \ndesignated by the Governor satisfies the requirements for prohibition. Respondents\u2019 reliance on \nMatter of Abelove v. Cuomo, 57 Misc. 3d 668, 676\u201377 (Sup. Ct. Albany County 2017), is \nmisplaced. Abelove involved an attempt to disqualify the Attorney General\u2019s entire office because \nan assistant might be a necessary witness; the Attorney General had already excluded that assistant \nfrom prosecuting the matter. 57 Misc. 3d at 676\u201377. Here, Petitioner attributes the prejudgment to \nAttorney General James herself, the official designated to direct the investigation. His claim \ntherefore concerns her personal qualification to proceed, rather than imputing a subordinate\u2019s \npotential conflict to the entire office. Although Abelove separately held that prohibition does not \nreach purely investigative conduct, Petitioner relies on the distinction discussed above between \ncontrolling investigative decisions and challenging the prosecutor\u2019s legal authority to proceed.  Id. \nat 668. The assistant\u2019s exclusion in Abelove did not require the court to resolve the personal \ndisqualification claim presented here. \n2.  \nThe Attorney General\u2019s statement must be assessed under the governing disqualification \nstandard. \nRespondents claim the September 28 statement was an expression of empathy that cannot \nestablish a clear legal right to relief. (Resp. Br. at 26\u201328, 31\u201335.) A conflict alone does not require \nremoval; the record must establish actual prejudice or a sufficiently substantial risk of prejudice. \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n20 of 26\n\n--- Page 21 ---\n16 \n \nSoares, 20 N.Y.3d at 146; Schumer, 60 N.Y.2d at 55. Adams, 20 N.Y.3d at 612\u201313 (recognizing \nexceptional circumstances in which an objectively serious appearance of impropriety warrants \ndisqualification). \nThe wording of the statement matters. Attorney General James described what Doe \u201chas \nbeen forced to endure,\u201d addressed her together with \u201call survivors,\u201d and declared, \u201cWe stand with \nyou.\u201d Pet. \u00b6 7. Petitioner contends that these words communicated acceptance of Doe\u2019s account \nbefore Attorney General James received responsibility for evaluating it. The concern is the \nrelationship between that expressed credibility judgment and her subsequent authority to assess \nthe same complainant, weigh contradictory evidence, and determine whether charges are \nwarranted. Her later assurance of a fair investigation must be considered alongside the earlier \nstatement, not treated as resolving its significance. Pet. \u00b6\u00b6 44\u201348. The Governor\u2019s stated reasons \nfor supersession reinforce this concern. EO 64 identifies the need for an objective review and \nexpressly addresses the public perception of conflict or bias. Pet. Ex. 5. Yet the official selected to \nrestore that confidence had already publicly endorsed the complainant\u2019s account. Pet. \u00b6 7; Ex. 6. \nPetitioner submits that placing the investigation under her control carries forward the very concern \nabout prejudgment that an independent review was intended to address. A later promise of fairness \ndoes not, by itself, dispel that concern. \nPetitioner does not equate a prosecutor\u2019s role with that of an impartial judge. Nor does he \nclaim a right to have the evidence presented in the manner most favorable to the defense. \nRespondents\u2019 discussion of prosecutorial discretion therefore does not answer whether a prior \npublic endorsement creates a legally disqualifying risk in this particular matter. \nThe civil enforcement cases Respondents cite also involve different claims. For example, \nPeople v. National Rifle Assn. of Am., Inc., 223 A.D.3d 84, 89\u201391 (1st Dep\u2019t 2023), addressed \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n21 of 26\n\n--- Page 22 ---\n17 \n \nretaliation and selective enforcement, including probable cause and differential treatment. Matter \nof People v. Trump Org., Inc., 205 A.D.3d 625, 626\u201327 (1st Dep\u2019t 2022), rejected challenges to \ncivil investigative subpoenas, including a selective prosecution theory. Neither supplies a \ncategorical exemption from prosecutorial disqualification principles. Petitioner\u2019s claim must be \nassessed under Schumer and Adams, while recognizing that public criticism or support, without \nthe required showing of prejudice or exceptional impropriety, is insufficient. \nC.  The Court should exercise its discretion to grant appropriately limited relief.  \n1.  \nThe governing discretionary factors support relief. \nEven where prohibition is available, issuance remains discretionary. The relevant \nconsiderations include the seriousness of the harm, the adequacy of ordinary remedies, and \nwhether prohibition would effectively address the identified excess of authority. Soares, 20 N.Y.3d \nat 145. Respondents argue that the alleged harm is negligible and that motions after indictment and \ndirect appeal provide adequate remedies. (Resp. Br. at 28\u201331.) This argument is flawed. \nPetitioner\u2019s asserted harm concerns the development of the investigation, including \nassessments of credibility and decisions about what evidence to pursue. Pet. \u00b6\u00b6 57\u201358. If the Court \nfinds a disqualifying prejudgment, the practical question is whether later review would adequately \naddress investigative decisions already made under that influence. Petitioner does not rely merely \non the hardship of facing trial and a possible conviction, which alone would not justify prohibition. \nSee Rush v. Mordue, 68 N.Y.2d 348, 354 (1986). Instead, Petitioner seeks relief before the alleged \nprejudgment shapes the investigative record. If the Court finds a disqualifying risk, limiting \nAttorney General James\u2019s participation now would address its source while allowing a lawful \ninvestigation to proceed, without relying solely on later review of decisions already made. \n2.  \nRespondents overstate the categorical inapplicability of ordinary disqualification \nprinciples. \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n22 of 26\n\n--- Page 23 ---\n18 \n \nRespondents argue that the standards discussed in Schumer and Adams apply only to \njudicial appointments and therefore cannot reach a prosecutor designated by the Governor. Resp. \nBr. at 31\u201332. That argument confuses the source of authority with the legal restrictions governing \nits exercise. Adams concerned a request to disqualify an existing district attorney\u2019s office and \nappoint a replacement; it did not merely review the validity of a judicial appointment. 20 N.Y.3d \nat 610\u201313. \nMoreover, Abelove considered ordinary prosecutorial conflict principles in evaluating a \ndisqualification claim against the Attorney General acting under gubernatorial superseder \nauthority. 57 Misc. 3d at 676\u201377. Although its denial of prohibition remains relevant to the \nprocedural question, its analysis does not support Respondents\u2019 proposed categorical exemption. \nPetitioner must still satisfy the substantive standard and establish an available procedural remedy. \nBut the executive origin of Attorney General James\u2019 designation does not itself establish that an \notherwise demonstrated disqualification may be disregarded. \n3.  \nRespondents\u2019 reliance on Rivera does not establish that personal credibility endorsements \nare proper. \nRespondents cite People v. Rivera, 206 A.D.3d 1356, 1359\u201360 (3d Dep\u2019t 2022), to support \ntheir account of Attorney General James\u2019 statement. Resp. Br. at 28. Rivera distinguished limited \nreferences to the complainant as a \u201cvictim\u201d and \u201csurvivor\u201d from the prosecutor\u2019s expression of a \npersonal opinion about witness credibility, which it expressly found improper. Id. at 1359-60. The \ncourt declined to reverse because curative instructions were given and the record did not establish \nmisconduct depriving the defendant of a fair trial. Id. \nThe timing and context also distinguish Rivera. There, the court evaluated comments made \nduring a trial, where the evidence was presented to a jury and the judge gave curative instructions \naddressing the prosecutor\u2019s improper credibility opinion. 206 A.D.3d at 1359\u201360. Here, Attorney \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n23 of 26\n\n--- Page 24 ---\n19 \n \nGeneral James endorsed Doe\u2019s account before she was assigned to investigate it. The concern is \ntherefore whether that prior commitment compromises the investigative judgment entrusted to her, \nbefore the evidence reaches a jury. Rivera\u2019s conclusion that corrective instructions preserved a fair \ntrial does not resolve whether James is qualified to direct this investigation. \nD.  Any alternative challenge to the Governor\u2019s determination rests on a preserved, \nreviewable legal theory. \nRespondents state that the Petition pleads only a claim under CPLR 7803(2), \nnotwithstanding its alternative request for relief. Resp. Br. at 3 n.1. The Petition expressly invokes \nCPLR 7803(3) in paragraphs 52\u201355 and alleges arbitrary and capricious action or abuse of \ndiscretion in paragraphs 71 and 79. Its request for alternative relief is therefore presented in the \npleading, rather than raised for the first time in reply. \nRespondents separately argue that the Governor\u2019s exercise of lawful superseder discretion \nis not subject to ordinary arbitrary and capricious review. Resp. Br. at 35. Matter of Johnson v. \nPataki, substantially limits review of that discretion. 91 N.Y.2d at 223\u201324. The alternative claim \ninstead depends on whether the asserted disqualification establishes an independently reviewable \nlegal defect in Attorney General James\u2019 personal participation. If that threshold is satisfied, \nPetitioner requests relief confined to that defect. CPLR 7806 permits annulment or modification \nof a reviewable determination and directions concerning specified action. \nCONCLUSION \nBroad executive authority does not excuse prosecutorial bias or eliminate the obligation to \nexercise independent judgment. The Attorney General\u2019s public endorsement of Doe\u2019s account \nundermines the independent investigation that EO 64 expressly requires, and the Governor\u2019s \nappointment cannot cure that prejudgment.  \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n24 of 26\n\n--- Page 25 ---\n20 \n \nFor the foregoing reasons, the Court should grant the Petition, annul EO 64, and disqualify \nthe Attorney General from serving as special prosecutor in this matter. Alternatively, the Court \nshould grant narrower relief prohibiting Attorney General James from personally participating in, \ndirecting, or supervising the investigation or any resulting prosecution, together with appropriate \nsafeguards to ensure independent prosecutorial judgment. If the Court determines that the \nchallenge is premature, any dismissal should be expressly without prejudice to Petitioner\u2019s right \nto seek disqualification in the appropriate proceeding upon a developed record, without \nadjudicating the merits of that claim. \nDated: New York, New York \n \nOctober 27, 2026 \n \n \n \n \n \n \nRespectfully Submitted, \n \n \n \n \n \n \n \nNESENOFF & MILTENBERG, LLP \n \n \n \n \n \n \n \nBy: /s/ Andrew T. Miltenberg                          \n \n \n \n \n \n \nAndrew T. Miltenberg, Esq. \n \n \n \n \n \n \nStuart Bernstein, Esq.  \n \n \n \n \n \n \nTara J. Davis, Esq.  \nKirsten E. Roy, Esq. (pro hac vice forthcoming) \n \n \n \n \n \n \n363 Seventh Avenue, Fifth Floor \n \n \n \n \n \n \nNew York, New York 10001 \n \n \n \n \n \n \n(212) 736-4500 \n \n \n \n \n \n \namiltenberg@nmllplaw.com \n \n \n \n \n \n \nsbernstein@nmllplaw.com  \n \n \n \n \n \n \ntdavis@nmllplaw.com \nkroy@nmllplaw.com \n \nAttorneys for Petitioner \n \n \n \n \n \n \n \n \n \n \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n25 of 26\n\n--- Page 26 ---\n21 \n \nSTATEMENT PURSUANT TO 22 NYCRR 202.8-b \nI, Andrew T. Miltenberg, affirm under penalty of perjury pursuant to CPLR 2106 that the \ntotal number of words in the foregoing Reply Memorandum of Law, inclusive of point headings \nand footnotes and exclusive of pages containing the caption, table of contents, table of authorities, \nand signature block, is 5,788 words. The foregoing Reply Memorandum of Law does not comply \nwith the word count limit set forth in 22 NYCRR 202.8-b. However, this Court granted Petitioner\u2019s  \nrequest to submit a Reply Memorandum of Law of up to 6,500 words and this Reply Memorandum \nof Law complies with the permission granted by the Court. In determining the number of words in \nthe foregoing Reply Memorandum of Law, I relied upon the word count of the word-processing \nsystem used to prepare the document. \n/s/ Andrew T. Miltenberg \n \n \n \n \n \n \n \n \nAndrew T. Miltenberg  \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n26 of 26","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 \nKATHY HOCHUL, in her official capacity as \nGovernor of the State of New York, and \nLETITIA JAMES, in her official capacity as \nAttorney General of the State of New York, \n \n                                                      Respondents. \n--------------------------------------------------------X  \n \n \n \nIndex No.: 911974/2026 \n \n \n \n             \n \nREPLY MEMORANDUM OF LAW IN RESPONSE TO RESPONDENTS\u2019 ANSWER AND \nOPPOSITION TO THE VERIFIED PETITION \n \n \n \n \nNESENOFF & MILTENBERG, LLP \nAndrew T. Miltenberg, Esq. \nStuart Bernstein, Esq.  \nTara J. Davis, Esq.  \nKirsten E. Roy, Esq.  \n363 Seventh Avenue, Fifth Floor \nNew York, New York 10001 \n(212) 736-4500 \n \nAttorneys for Petitioner \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n1 of 26\n\n--- Page 2 ---\ni \n \nTABLE OF CONTENTS \nINTRODUCTION ...........................................................................................................................1 \nI. \nPETITIONER\u2019S CLAIMS ARE JUSTICIABLE ................................................................2 \nA. \nPetitioner\u2019s challenge to the Attorney General\u2019s qualification presents a \nlegal question appropriate for judicial resolution. ...................................................4 \n1. \nThe Governor\u2019s superseder authority does not resolve the separate \nquestion of disqualification. .........................................................................4 \n2. \nReview of a demonstrated disqualification is consistent with the \nLegislature\u2019s allocation of prosecutorial authority. ......................................7 \nB. \nThe claims concern an existing appointment and an allegedly existing \ndisqualification. ........................................................................................................8 \nC. \nPetitioner has a personal stake in the challenged exercise of prosecutorial \nauthority. ................................................................................................................10 \n1. \nPetitioner alleges an individualized injury. ................................................10 \n2. \nThe asserted injury implicates the protections Petitioner seeks to \nenforce........................................................................................................12 \nII. \nRESPONDENTS HAVE NOT ESTABLISHED THAT THE PETITION IS \nPROCEDURALLY BARRED OR SUBSTANTIVELY WITHOUT MERIT...................13 \nA. \nCounty Law \u00a7 701(6) does not expressly make an application by the \nAttorney General the exclusive means of obtaining judicial review of \ndisqualification. ......................................................................................................13 \nB. \nPetitioner has established that prohibition reaches the challenged conduct \nand that a clear legal right to relief exists. .............................................................14 \n1. \nThe challenge concerns the prosecutor\u2019s legal authority to proceed, \nnot an individual investigative decision. ....................................................14 \n2. \nThe Attorney General\u2019s statement must be assessed under the \ngoverning disqualification standard. ..........................................................15 \nC. \nThe Court should exercise its discretion to grant appropriately limited \nrelief. ......................................................................................................................17 \n1. \nThe governing discretionary factors support relief. ...................................16 \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n2 of 26\n\n--- Page 3 ---\nii \n \n2. \nRespondents overstate the categorical inapplicability of ordinary \ndisqualification principles. .........................................................................17 \n3. \nRespondents\u2019 reliance on Rivera does not establish that personal \ncredibility endorsements are proper. ..........................................................18 \nD. \nAny alternative challenge to the Governor\u2019s determination rests on a \npreserved, reviewable legal theory. ........................................................................19 \nCONCLUSION ..............................................................................................................................19 \n \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n3 of 26\n\n--- Page 4 ---\niii \n \nTABLE OF AUTHORITIES \nCases \nMatter of Abelove v. Cuomo,  \n57 Misc. 3d 668 (Sup. Ct. Albany County 2017)...............................................................15, 18 \nMatter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. \nConservation,  \n23 N.Y.3d 1 (2014) ................................................................................................................... 11 \nCenter for Independence of the Disabled v. Metropolitan Transp. Auth.,  \n184 A.D.3d 197 (1st Dep\u2019t 2020) ...........................................................................................2, 5 \nChurch of St. Paul & St. Andrew v. Barwick,  \n67 N.Y.2d 510 (1986) .................................................................................................................9 \nCuomo v. Long Is. Light. Co.,  \n71 N.Y.2d 349 (1988) .................................................................................................................8 \nGrand S. Point, LLC v. Bassett,  \n230 A.D.3d 49 (3d Dep\u2019t 2024) .................................................................................................9 \nHollandale Apartments & Health Club, LLC v. Bonesteel,  \n173 A.D.3d 55 (3d Dep\u2019t 2019) .................................................................................................8 \nIn re Grand Jury Investigation,  \n696 F.2d 449 (6th Cir. 1982) ....................................................................................................10 \nIn re Grand Jury Proceedings,  \n700 F. Supp. 626 (D.P.R. 1988) ...............................................................................................10 \nIn re Grand Jury Subpoena Served Upon Doe,  \n781 F.2d 238 (2d Cir. 1986) (en banc) .....................................................................................10 \nMatter of Johnson v. Pataki,  \n91 N.Y.2d 214 (1997) ...........................................................................................................5, 19 \nMatter of Mental Hygiene Legal Serv. v. Daniels,  \n33 N.Y.3d 44 (2019) ................................................................................................................. 11 \nMatter of People v. Trump Org., Inc.,  \n205 A.D.3d 625 (1st Dep\u2019t 2022) .............................................................................................16 \nMatter of Percinthe v. Department of Corr. & Community Supervision,  \n227 A.D.3d 1347 (3d Dep\u2019t 2024) .............................................................................................4 \nPeople v. Adams,  \n20 N.Y.3d 608 (2013) ....................................................................................................... passim \nPeople v. National Rifle Assn. of Am., Inc.,  \n223 A.D.3d 84 (1st Dep\u2019t 2023) ...............................................................................................16 \nPeople v. Rivera,  \n206 A.D.3d 1356 (3d Dep\u2019t 2022) ...........................................................................................18 \nPeople v. Santorelli,  \n95 N.Y.2d 412 (2000) ...............................................................................................................12 \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n4 of 26\n\n--- Page 5 ---\niv \n \nPolice Benevolent Assn. of N.Y. State Troopers, Inc. v. New York State Div. of State Police,  \n40 A.D.3d 1350 (3d Dep\u2019t 2007) ...............................................................................................4 \nRush v. Mordue,  \n68 N.Y.2d 348 (1986) ...............................................................................................................17 \nSchulz v. Cuomo,  \n133 A.D.3d 945 (3d Dep\u2019t 2015) ...............................................................................................4 \nMatter of Schumer v. Holtzman,  \n60 N.Y.2d 46 (1983) ......................................................................................................... passim \nMatter of Sedore v. Epstein,  \n56 A.D.3d 60 (2d Dep\u2019t 2008) ...................................................................................................2 \nMatter of Sierra Club v. Village of Painted Post,  \n26 N.Y.3d 301 (2015) ............................................................................................................... 11 \nMatter of Soares v. Herrick,  \n20 N.Y.3d 139 (2012) ...................................................................................................14, 15, 17 \nSociety of Plastics Indus., Inc. v. County of Suffolk,  \n77 N.Y.2d 761 (1991) ...............................................................................................................12 \nMatter of Stevens v. New York State Div. of Criminal Justice Servs.,  \n40 N.Y.3d 505 (2023) ...............................................................................................................10 \nSullivan v. New York State Joint Commn. on Pub. Ethics,  \n207 A.D.3d 117 (3d Dep\u2019t 2022) ...............................................................................................9 \nMatter of Working Families Party v. Fisher,  \n23 N.Y.3d 539 (2014) .........................................................................................................10, 14 \nConstitutional Provisions \nN.Y. Const. art. IV, \u00a7 3 .....................................................................................................................1 \nRules \nCPLR 506(b) ..................................................................................................................................13 \nCPLR 7803(2) ................................................................................................................................18 \nCPLR 7803(3) ................................................................................................................................18 \nCPLR 7806.....................................................................................................................................19 \nStatutes \nCounty Law \u00a7 701(6) .......................................................................................................7, 8, 13, 14 \nExecutive Law \u00a7 63(2) .......................................................................................................1, 4, 7, 12 \nOther Authorities \nExecutive Order No. 64 ......................................................................................................... passim \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n5 of 26\n\n--- Page 6 ---\n1 \n \nINTRODUCTION \nWhile the Governor\u2019s superseder authority is broad, it is not unfettered. Executive Law \u00a7 \n63(2) does not authorize the Governor to disregard her legal obligations governing the prosecutor \nshe appoints. Indeed, the Governor must \u201ctake care that the laws are faithfully executed.\u201d N.Y. \nConst. art. IV, \u00a7 3. (Emphasis added). That obligation cannot be satisfied by invoking executive \npower to excuse prosecutorial bias. Executive Order No. 64 (\u201cEO 64\u201d or the \u201cOrder\u201d) expressly \nrequires an objective review and a \u201cfull, reasoned, and independent investigation.\u201d The Order \ninvokes concerns about conflict, bias, and the public perception of bias as grounds for superseding \nthe local District Attorney. Respondents cannot invoke those concerns to justify the appointment \nof a special prosecutor, while then dismissing evidence of the exact same harm and prejudgment \nby the new prosecutor selected by the Governor to conduct the investigation. \nBefore her appointment, Attorney General James publicly stated, on the Attorney General \nOffice\u2019s official account: \u201cWhat this young woman has been forced to endure is horrific and \nunacceptable. I\u2019m holding her in my heart and in my prayers. To her, and to all survivors: you\u2019re \nnot alone. We stand with you.\u201d Pet. \u00b6 7. By declaring what Jane Doe \u201chas been forced to endure\u201d \nand characterizing her as a \u201csurvivor,\u201d the Attorney General  treated the alleged assault as an \nestablished crime before conducting the proposed independent/unbiased investigation she was \nsubsequently appointed to undertake. Her declaration that \u201c[w]e stand with you\u201d further aligned \nher and her office with Jane Doe\u2019s account. Respondents\u2019 classification of these words as mere \nempathy fails to confront their substance. The statement publicly declared as true, the underlying \nallegations that the Attorney General\u2019s independent/unbiased investigation was supposed to \nevaluate. \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n6 of 26\n\n--- Page 7 ---\n2 \n \nThat prejudgment is particularly consequential because those same allegations support \nDoe\u2019s pending civil claims against Petitioner, a lawsuit prominently referenced in EO 64. A \nprosecutor\u2019s obligations run to the public, and competing private loyalties cannot compromise the \nduty to do justice. See Matter of Sedore v. Epstein, 56 A.D.3d 60, 66\u201368 (2d Dep\u2019t 2008). A \nprosecutor cannot wield the criminal power of the State while maintaining a competing \ncommitment to vindicate a private civil litigant\u2019s allegations. Petitioner challenges the substantial \nrisk that the Attorney General\u2019s public endorsement will influence the exercise of that power, \nturning an independent inquiry into a foregone conclusion to substantiate an account she has \nalready embraced. \nThe Governor\u2019s power to appoint does not resolve the Attorney General\u2019s qualification to \nserve. Nor does the investigation\u2019s preliminary stage erase the prejudgment that preceded it. \nPetitioner has identified specific conduct undertaken by the appointed Attorney General, made \nbefore the appointment, bearing directly on the independence EO 64 requires. Respondents must \nanswer that disqualification claim on its substance. Repeating that the Governor possesses \nsuperseder authority does not establish that the designated prosecutor can lawfully exercise it in \nthese circumstances. The Court should reject Respondents\u2019 attempt to foreclose review and grant \nthe relief requested in the Petition. \nI.  \nPETITIONER\u2019S CLAIMS ARE JUSTICIABLE \nRespondents\u2019 argument that Petitioner\u2019s claims are not justiciable fails to distinguish the \nGovernor\u2019s authority to appoint a special prosecutor from the Attorney General\u2019s qualification to \nserve in this particular matter. Indeed, Petitioner challenges the Attorney General\u2019s qualification \nto exercise that authority in this matter after publicly prejudging the allegations she was appointed \nto independently investigate. Courts may enforce legal obligations without assuming the \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n7 of 26\n\n--- Page 8 ---\n3 \n \nexecutive\u2019s policymaking role. See Center for Independence of the Disabled v. Metropolitan \nTransp. Auth., 184 A.D.3d 197, 208\u201309 (1st Dep\u2019t 2020); People v. Adams, 20 N.Y.3d 608, 612\u2013\n13 (2013).  \nPetitioner challenges the Attorney General\u2019s existing appointment based on her prior public \nendorsement of Doe\u2019s allegations. Before her appointment, Attorney General James publicly \ndescribed what Doe \u201chas been forced to endure,\u201d addressed her as a \u201csurvivor,\u201d and declared, \n\u201c[w]e stand with you.\u201d Pet. \u00b6 7. The Governor then appointed her to investigate those same \nallegations, which underlie the civil action where Petitioner is one of the named defendants. \nRespondents expressly admit that Petitioner\u2019s conduct \u201cmay fall within the scope of the \ninvestigation authorized by EO 64.\u201d Answer \u00b6\u00b6 59, 69. They further admit paragraph 65 of the \nPetition, which alleges that Attorney General James\u2019s authority encompasses witness-credibility \nassessments, the pursuit of evidence, grand jury presentations, and charging decisions concerning \nPetitioner. Answer \u00b6 70; Pet. \u00b6 65. These admissions establish Petitioner\u2019s specific connection to \nthe investigation and the consequential decisions entrusted to Attorney General James. Although \nRespondents have not admitted that Petitioner will be charged or prejudiced, his concern relates \ndirectly to prosecutorial authority they acknowledge extends to allegations involving him. As such, \nPetitioner\u2019s concern is concrete: the official entrusted with an independent investigation has \nalready publicly made a determination of the facts by accepting Doe\u2019s version of events before \nundertaking that investigation, in accordance with principles of due process. Respondents cannot \ndispose of that concern by relying on the Governor\u2019s appointment power or describing the \ninvestigation as merely preliminary. Neither addressed the central issue i.e., whether the Attorney \nGeneral\u2019s public commitment to Doe\u2019s account creates a substantial risk of prejudice to Petitioner. \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n8 of 26\n\n--- Page 9 ---\n4 \n \nMoreover, the authorities on which Respondents rely concern materially different \ncircumstances. In Schulz, the alleged injury depended on voter approval of a future constitutional \nconvention, the election of particular delegates, and their subsequent actions. Schulz v. Cuomo, \n133 A.D.3d 945, 947\u201348 (3d Dep\u2019t 2015). In Percinthe, the challenge to expired parole conditions \nwas moot, while the request to prevent their reimposition upon a future release depended on a \ndetermination that might never occur. Matter of Percinthe v. Department of Corr. & Community \nSupervision, 227 A.D.3d 1347, 1348 (3d Dep\u2019t 2024). Police Benevolent Association involved a \nfacial challenge to potential arbitrary applications of a policy; although the policy had been applied \nto individual plaintiffs, they did not pursue claims challenging its application to their particular \ncircumstances. Police Benevolent Assn. of N.Y. State Troopers, Inc. v. New York State Div. of State \nPolice, 40 A.D.3d 1350, 1352\u201353 (3d Dep\u2019t 2007). The foregoing decisions do not resolve whether \nthe Governor\u2019s  appointment creates a present and substantial risk of prejudice to Petitioner. Here, \nPetitioner challenges a specific appointment based on the designated prosecutor\u2019s previously \nvoiced public endorsement of the allegations she is charged with investigating. As explained \nbelow, the circumstances of this appointment satisfy the requirements for judicial review. \nA.  \nPetitioner\u2019s challenge to the Attorney General\u2019s qualification presents a legal question \nappropriate for judicial resolution. \nRespondents contend that judicial review would impermissibly interfere with the \nGovernor\u2019s superseder authority, the Attorney General\u2019s prosecutorial discretion, and the \nLegislature\u2019s allocation of prosecutorial power. (Resp. Br. at 6\u201312.) Indeed, Respondents conflate \nthe authority to designate a prosecutor with the designated prosecutor\u2019s legal qualification to serve \nin a particular matter. Petitioner acknowledges the Governor\u2019s broad authority under Executive \nLaw \u00a7 63(2). The question presented is whether Attorney General James\u2019s prior public \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n9 of 26\n\n--- Page 10 ---\n5 \n \nendorsement of the allegations she was subsequently appointed to investigate creates a \ndisqualification under established law. \n1. \nThe Governor\u2019s superseder authority does not resolve the separate question of   \ndisqualification. \n \nRespondents principally rely on Matter of Johnson v. Pataki, 91 N.Y.2d 214, 223\u201324 \n(1997), which recognizes the Governor\u2019s broad discretion to supersede a district attorney and \ngenerally confines judicial review to whether constitutional or statutory authority exists for that \naction. Petitioner does not ask this Court to depart from that rule. He does not contend that the \nGovernor was required to establish the necessity of supersession, explain her decision to the \nCourt\u2019s satisfaction, or leave the investigation with the Tompkins County District Attorney. Rather, \nPetitioner challenges Attorney General James\u2019s personal qualification to exercise the authority \nconferred upon her. Johnson did not decide whether a designated prosecutor could proceed \nnotwithstanding an independently established disqualification. Its protection of the Governor\u2019s \ndiscretionary superseder decision therefore does not resolve the distinct issue presented here. \nThe distinction matters because the presence of executive discretion does not, by itself, \nforeclose judicial enforcement of an existing legal obligation. Courts must refrain from assuming \nthe policy choices reserved to the political branches, but that limitation does not render every claim \naffecting executive action nonjusticiable. Center for Independence of the Disabled v. Metropolitan \nTransp. Auth., 184 A.D.3d 197, 208\u201309 (1st Dep\u2019t 2020). Here, the asserted restriction is the law \ngoverning prosecutorial disqualification. Petitioner seeks application of that restriction to the \nofficial entrusted with investigating the allegations against him, not judicial supervision of how a \nqualified prosecutor should conduct the investigation.  \nOrdinarily, disqualification requires prejudice attributable to an established conflict or a \nsubstantial danger that an attorney will misuse confidential information. The objector must \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n10 of 26\n\n--- Page 11 ---\n6 \n \ndemonstrate actual prejudice or a sufficiently serious risk of prejudice to warrant intervention. \nMatter of Schumer v. Holtzman, 60 N.Y.2d 46, 55 (1983). Separately, People v. Adams,  recognizes \na narrow category of cases in which an exceptionally serious appearance of impropriety warrants \ndisqualification. 20 N.Y.3d 608, 612\u201313 (2013). That inquiry considers whether the record \nobjectively calls into question the prosecutor\u2019s exercise of discretion according to the merits and \nlegitimate prosecutorial considerations.  \nBefore receiving the designation as special prosecutor, Attorney General James publicly \ndescribed what Doe \u201chas been forced to endure,\u201d addressed her together with \u201call survivors,\u201d and \ndeclared, \u201cWe stand with you.\u201d Pet. \u00b6 7. Petitioner contends that these statements communicated \nacceptance of Doe\u2019s account before Attorney General James was assigned to assess its credibility \nand determine whether criminal charges were warranted. The concern is therefore specific to the \nallegations under investigation, specific to EO 64, and to the official now responsible for \nevaluating them. Whether that public commitment establishes the exceptional risk of prejudice \nrequired for disqualification is a legal question that Respondents cannot answer merely by stating \nthat the Governor possesses superseder authority. \nIn Schumer, the Court declined to adjudicate the district attorney\u2019s personal disqualification \nbecause the asserted political antagonism and potential involvement of former employees did not \nestablish a sufficiently developed basis for intervention. 60 N.Y.2d at 55\u201356. In this case, Petitioner \nrelies on a very specific and very public statement addressing the complainant and allegations \nentrusted to Attorney General James. Following Attorney General James\u2019 tweet, the Governor \nissued EO 64 which specifically references the concerns raised by Doe and the public, and now in \nthis Petition, \u201cthat this incident cannot be fully and thoroughly investigated or prosecuted without \nconflict or bias, or the public perception of conflict or bias\u201d, noting that the public interest requires \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n11 of 26\n\n--- Page 12 ---\n7 \n \nan \u201cobjective review.\u201d The next day, on September 29, 2026, the Governor referred to the \nallegations as \u201cnothing short of horrifying\u201d and expressed support for the district attorney\u2019s \ndecision to reopen the criminal investigation. Pet. Ex. 4. Notwithstanding her stated support of the \nlocal District Attorney, the Governor appointed Attorney General James, despite her expressed \nprejudgment , which mirrors the reason the Governor inserted herself in this matter in the first \nplace. Unlike Schumer, this matter does not depend upon whether a potential witness later becomes \nimplicated.  \nFurthermore, Adams does not support Respondents\u2019 contention that disqualification \nprinciples apply only to judicial appointments. Resp. Br. at 31\u201332. Adams concerned the refusal to \ndisqualify an existing district attorney\u2019s office and appoint a replacement. The Court reversed, \nfinding an objectively serious appearance that prosecutorial discretion had been influenced by the \ncomplainant\u2019s position rather than legitimate prosecutorial considerations. 20 N.Y.3d at 610\u201314. \nIts reasoning therefore concerns the prosecutor\u2019s qualification to continue, not simply the validity \nof a judicial appointment. Although Adams arose after charges were filed and does not \nindependently establish the availability of pre-prosecution review here, its substantive \ndisqualification standard directly informs Petitioner\u2019s claim.  \n2. \nReview of a demonstrated disqualification is consistent with the Legislature\u2019s allocation of \nprosecutorial authority. \nRespondents also argue that judicial review would override the Legislature\u2019s decision to \nallocate superseder authority to the Governor. (Resp. Br. at 11\u201312.) Executive Law \u00a7 63(2) assigns \nthe Attorney General both the prosecutorial powers and the corresponding duties otherwise \nexercised by the district attorney. The statute supplies authority to act; it does not expressly exempt \nthe designated prosecutor from otherwise applicable disqualification principles. Applying those \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n12 of 26\n\n--- Page 13 ---\n8 \n \nprinciples would address a claimed legal restriction on the exercise of authority, rather than create \nan additional policy prerequisite to the Governor\u2019s decision to supersede.  \nCounty Law \u00a7 701(6) does not establish otherwise. That subdivision expressly addresses \ncircumstances in which the Attorney General acts in place of a district attorney and is disqualified. \nIt provides a mechanism for a superior criminal court in the appropriate county to appoint a \nreplacement upon articulable reasons supplied by the Attorney General. The requirements \ngoverning replacement do not establish that the underlying question of qualification is a political \nquestion beyond judicial determination. The statute itself contemplates that the Attorney General \nmay be disqualified while exercising substituted prosecutorial authority.  \nWhether Section 701(6) limits the procedural route or relief available here must be \naddressed on the merits, as discussed further below. The statute is inapplicable here as it does not \nresolve whether Attorney General James\u2019s prior public statements satisfy the substantive standard \nfor disqualification.  \nAs such, the Court should reject Respondents\u2019 argument that the political question doctrine \nforecloses consideration of Petitioner\u2019s claim merely because the challenged authority originated \nin an exercise of executive power. \nB.  \nThe claims concern an existing appointment and an allegedly existing \ndisqualification. \nRespondents argue that Petitioner\u2019s claims are premature because the investigation may \nnever lead to an indictment or prosecution. (Resp. Br. at 12\u201314.) Petitioner challenges Attorney \nGeneral James\u2019 qualification to direct the investigation itself. EO No. 64 has already designated \nher to investigate allegations involving Petitioner, and the statement underlying his disqualification \nclaim predates that designation. The question is whether Attorney General James\u2019s prior \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n13 of 26\n\n--- Page 14 ---\n9 \n \nendorsement of the allegations made against Petitioner creates a sufficiently substantial risk of \nprejudice to warrant review now. \nIt is well settled \u201cthat courts do not give advisory opinions\u2014that is, determinations that \npurport to resolve issues that depend on events that may never occur and are outside the control of \nthe parties.\u201d Hollandale Apartments & Health Club, LLC v. Bonesteel, 173 A.D.3d 55, 59, 100 \nN.Y.S.3d 711 (2019); Cuomo v Long Is. Light. Co., 71 NY2d 349, 354 (1988). Where \u201canticipated \nharm is insignificant, remote or contingent, the controversy is not ripe.\u201d Church of St. Paul & St. \nAndrew v. Barwick, 67 N.Y.2d 510, 519-20 (1986) (internal brackets omitted). Thus, to determine \nwhether a governmental action is ripe for review, the court must consider  \u201cwhether the issues \ntendered are appropriate for judicial resolution\u201d and assess \u201cthe hardship to the parties if judicial \nrelief is denied.\u201d Sullivan v. New York State Joint Commn. on Pub. Ethics, 207 A.D.3d 117, 130 \n(3d Dep\u2019t 2022); see Grand S. Point, LLC v. Bassett, 230 A.D.3d 49, 60 (3d Dep\u2019t 2024). \n \nThe alleged harm here is substantial and directly concerns Petitioner. He is a named \ndefendant in the civil action containing allegations Attorney General James has been appointed to \ninvestigate. Pet. \u00b6\u00b6 28\u201330, 56. Her assessment of witnesses and decisions about which evidence to \npursue will shape the case against him before any charges are filed. Pet. \u00b6\u00b6 57\u201358. The basis for \nthe claimed disqualification also already exists: she publicly endorsed Doe\u2019s account before \nreceiving authority to investigate it.  \nBecause the statement establishes disqualifying prejudgment, the problem arises when she \ndirects the investigation, not only if she later obtains an indictment. The Court can evaluate her \nstatement, the authority she now holds, and the resulting risk of prejudice on the existing record. \nWhether the investigation ultimately produces criminal charges does not answer whether she is \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n14 of 26\n\n--- Page 15 ---\n10 \n \nqualified to lead it or whether she is inherently biased due to her public endorsement of Doe\u2019s \nallegations. \nThe alleged prejudice likewise concerns decisions made before indictment. Attorney \nGeneral James\u2019s authority encompasses the assessment of witnesses, selection of evidence, and \ndirection of the investigation. Pet. \u00b6\u00b6 56\u201358. If her prior statement establishes a disqualifying \nprejudgment, waiting until those decisions have shaped the record would render a later review \nfutile. The purported uncertainty of a future prosecution does not fully answer the injury alleged \nby Petitioner. \u201cIt is not in the public interest to allow a prosecutor to carry out a lengthy \ninvestigation when there is doubt that his or her appointment is valid, and to run the risk that the \nprocess will have to start over again with a different prosecutor.\u201d Fisher, 23 N.Y.3d at 544. \nSchumer\u2019s holding was expressly tied to the record presented. The Court invalidated an \nunauthorized delegation of prosecutorial authority while finding the separate disqualification claim \npremature because the asserted political antagonism and potential conflicts did not establish \ngrounds for intervention. Schumer, 60 N.Y.2d at 53\u201356 (\u201cthe application for disqualification was \npremature and not justiciable on the present record\u201d) (Emphasis added). Here, Petitioner relies on \nan official statement addressing the very allegations Attorney General James was subsequently \nassigned to investigate. Given that the statement and designation establish a sufficiently immediate \nrisk of prejudice, the absence of an indictment does not resolve that inquiry by itself.1 \nC.  \nPetitioner has a personal stake in the challenged exercise of prosecutorial authority. \n \n1 The authorities Respondents rely on do not establish that preindictment review is barred. In re Grand Jury Subpoena \nServed Upon Doe, 781 F.2d 238, 245 (2d Cir. 1986) (en banc), concerned potential disqualification of defense counsel \nwhose testimony might require withdrawal, not a prosecutor\u2019s qualification. In In re Grand Jury Proceedings, 700 F. \nSupp. 626, 630\u201331 (D.P.R. 1988), the individual prosecutor had already recused himself, and the court rejected \nspeculative grounds for disqualifying the entire office. Likewise, In re Grand Jury Investigation, 696 F.2d 449, 451 \n(6th Cir. 1982), rejected conclusory conflict allegations while leaving the general scope of preindictment supervisory \nauthority unresolved. Petitioner relies on the designated prosecutor\u2019s own public statement concerning the allegations \nshe was assigned to investigate and asks the Court to assess that existing record under the demanding standard for \nintervention. \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n15 of 26\n\n--- Page 16 ---\n11 \n \nTo establish standing, \u201c[a] petitioner challenging government agency action pursuant to an \narticle 78 petition has the burden of demonstrating an injury in fact and that the alleged injury falls \nwithin the zone of interests or concerns sought to be promoted or protected by the statutory \nprovision under which the government has acted.\u201d Matter of Stevens v. New York State Div. of \nCriminal Justice Servs., 40 N.Y.3d 505, 515 (2023) (cleaned up). \nPetitioner has a personal stake in this challenge because Attorney General James has been \nassigned to investigate allegations against him after publicly endorsing the complainant\u2019s account, \ncreating the specific risk of prejudice he seeks to prevent. \n1.  \nPetitioner alleges an individualized injury. \n\u201cThe injury-in-fact requirement necessitates a showing that the party has an actual legal \nstake in the matter being adjudicated and has suffered a cognizable harm that is not tenuous, \nephemeral, or conjectural but is sufficiently concrete and particularized to warrant judicial \nintervention.\u201d Matter of Mental Hygiene Legal Serv. v. Daniels, 33 NY3d 44, 50 (2019) (cleaned \nup). See also Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. \nConservation, 23 NY3d 1, 7 (2014). However, standing rules should not be applied \u201cin an overly \nrestrictive manner where the result would be to completely shield a particular action from judicial \nreview.\u201d Matter of Sierra Club v. Village of Painted Post, 26 NY3d 301, 311 (2015); Matter of \nAssociation for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 N.Y.3d \n1, 6\u20137 (2014) (\u201cstanding rules should not be heavy-handed\u201d).  \nRespondents attempt to portray the alleged injury as speculative with respect to how the \ninvestigation might proceed. (Resp. Br. at 16\u201318.) However, Petitioner\u2019s claim rests on identified \nfacts: he is a named defendant in the related civil case, the allegations concerning him fall within \nEO No. 64, and Attorney General James publicly endorsed Doe\u2019s account before receiving \nauthority to investigate it. Pet. \u00b6\u00b6 7, 16\u201317, 28\u201333, 56. \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n16 of 26\n\n--- Page 17 ---\n12 \n \nPetitioner is faced with the situation where the prosecutor evaluating the allegations against \nhim has already prejudged the allegations in Doe\u2019s favor. Moreover, the pending risk reaches \ninvestigative decisions preceding any prosecution. It is attributable to EO No. 64, which placed \nthose decisions under Attorney General James\u2019s control, and the requested limitation on her \nparticipation would address its asserted source. Pet. \u00b6\u00b6 57\u201358, 60\u201363. It is painfully clear that \nAttorney General James has already violated her oath and obligation to conduct an independent \ninvestigation when making her very public statement of accepting as true Doe\u2019s allegations. The \nAttorney General\u2019s own words warrant disqualification in this matter. \n2.  \nThe asserted injury implicates the protections Petitioner seeks to enforce. \nRespondents separately argue that Executive Law \u00a7 63(2) protects only institutional \ninterests in allocating prosecutorial authority. (Resp. Br. at 19\u201320.) The zone of interests inquiry \nrequires a connection between the injury alleged and the purposes of the governing law. Society of \nPlastics Indus., Inc. v. County of Suffolk, 77 N.Y.2d 761, 773\u201374 (1991). That connection exists \nhere because Section 63(2) transfers prosecutorial duties along with prosecutorial powers. \nA prosecutor\u2019s duties include protecting fairness and the integrity of the criminal process. \nSee People v. Santorelli, 95 N.Y.2d 412, 420\u201321 (2000). \u201cProsecutors play a distinctive role in the \nsearch for truth in criminal cases. As public officers they are charged not simply with seeking \nconvictions but also with ensuring that justice is done. This role gives rise to special \nresponsibilities--constitutional, statutory, ethical, personal--to safeguard the integrity of criminal \nproceedings and fairness in the criminal process.\u201d Id.  \nThe disqualification rules protect affected individuals against prosecutorial prejudice and, \nin exceptional circumstances, an objectively intolerable appearance of impropriety. Adams, 20 \nN.Y.3d at 612\u201313. Petitioner seeks enforcement of those restrictions as they apply to authority over \nallegations involving him. \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n17 of 26\n\n--- Page 18 ---\n13 \n \nFurthermore, despite Respondents\u2019 contention, the statute\u2019s allocation of executive power \ndoes not eliminate that personal interest. Indeed, Schumer permitted an investigation\u2019s prospective \nsubject to challenge an unlawful delegation of prosecutorial authority, although finding the \nseparate personal disqualification claim was premature. 60 N.Y.2d at 53\u201356. Respondents cannot \ndefeat standing merely by describing the underlying grant of authority as institutional. Whether \nPetitioner established the prerequisites for relief here is a separate inquiry for the Court to consider.  \nII.  RESPONDENTS HAVE NOT ESTABLISHED THAT THE PETITION IS \nPROCEDURALLY BARRED OR SUBSTANTIVELY WITHOUT MERIT \nA.  \nCounty Law \u00a7 701(6) does not expressly make an application by the Attorney General \nthe exclusive means of obtaining judicial review of disqualification. \nRespondents argue that County Law \u00a7 701(6) forecloses this proceeding because only the \nAttorney General may initiate disqualification proceedings, and any application must be brought \nin the superior criminal court where the matter is triable. (Resp. Br. at 20\u201322.) Their argument \nconflates the statutory procedure for appointing a replacement as necessarily controlling whether \nan adverse party may obtain review of the Attorney General\u2019s qualification to proceed. \nSection 701(6)(b) addresses circumstances in which the Attorney General and her \nassistants are disqualified and authorizes a superior criminal court to appoint a replacement upon \narticulable reasons supplied by the Attorney General. Those requirements govern the appointment \nauthorized by that subdivision. The text of the statute does not expressly state that the Attorney \nGeneral alone may raise a disqualification issue or that an adverse party is barred from seeking \notherwise available judicial review. County Law \u00a7 701(6). Petitioner\u2019s proposed distinction gives \neffect to the statutory requirements without making the challenged prosecutor\u2019s willingness to seek \nreplacement a prerequisite to every judicial inquiry into her qualification. \nThe subdivision\u2019s broad applicability and \u201cnotwithstanding\u201d clause must also be given \neffect. Petitioner does not ask this Court to disregard those provisions or appoint a replacement \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n18 of 26\n\n--- Page 19 ---\n14 \n \nthrough a procedure inconsistent with the statute. He seeks a determination concerning Attorney \nGeneral James\u2019s personal participation and relief limited to the legal defect established. Pet. \u00b6\u00b6 \n60\u201363. Whether Article 78 supplies that remedy must be determined under the authorities \ngoverning Article 78; the existence of a replacement procedure does not itself answer that question. \nRespondents\u2019 venue objection likewise depends on which proceeding is properly before \nthe Court. If this Article 78 proceeding is available, CPLR 506(b) permits commencement where \nthe challenged determination was made or the respondent\u2019s principal office is located. The Petition \nalleges those connections to Albany County. Pet. \u00b6 15. That does not dispense with Section \n701(6)\u2019s requirements for an appointment under that provision, but Respondents cannot resolve \nthe availability of Article 78 simply by applying the venue requirement governing a different  \napplication. \nB.  \nPetitioner has established that prohibition reaches the challenged conduct and that a \nclear legal right to relief exists. \n1.  \nThe challenge concerns the prosecutor\u2019s legal authority to proceed, not an individual \ninvestigative decision. \nRespondents argue that prohibition cannot reach either the Governor\u2019s designation or the \nAttorney General\u2019s investigation because both involve executive action. (Resp. Br. at 22\u201326.) \nProhibition is available only to restrain judicial or quasi-judicial action taken without or in excess \nof authority, upon a clear legal right to relief. It cannot correct ordinary legal errors or restrain \npurely executive investigative activity. Matter of Soares v. Herrick, 20 N.Y.3d 139, 145 (2012). \nPetitioner\u2019s claim concerns whether Attorney General James may personally exercise \nprosecutorial authority in this matter after publicly endorsing the allegations entrusted to her. He \ndoes not ask the Court to decide which witnesses should be interviewed or how particular evidence \nshould be presented. For example, Matter of Working Families Party v. Fisher, 23 N.Y.3d 539, \n544\u201345 (2014), distinguishes a challenge to a prosecutor\u2019s appointment from an attempt to control \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n19 of 26\n\n--- Page 20 ---\n15 \n \ninvestigative decisions by a validly appointed prosecutor. The Court permitted review of a judicial \nappointment during an investigation, emphasizing the value of resolving the prosecutor\u2019s authority \npromptly. Id. Although Working Families Party involved a court appointed prosecutor, it \nestablishes that the investigative stage alone does not bar review of a challenge to the validity of a \nprosecutor\u2019s appointment. Petitioner relies on that distinction because he challenges Attorney \nGeneral James\u2019s qualification to proceed, not her individual investigative decisions. The case does \nnot independently resolve whether this personal disqualification challenge to a prosecutor \ndesignated by the Governor satisfies the requirements for prohibition. Respondents\u2019 reliance on \nMatter of Abelove v. Cuomo, 57 Misc. 3d 668, 676\u201377 (Sup. Ct. Albany County 2017), is \nmisplaced. Abelove involved an attempt to disqualify the Attorney General\u2019s entire office because \nan assistant might be a necessary witness; the Attorney General had already excluded that assistant \nfrom prosecuting the matter. 57 Misc. 3d at 676\u201377. Here, Petitioner attributes the prejudgment to \nAttorney General James herself, the official designated to direct the investigation. His claim \ntherefore concerns her personal qualification to proceed, rather than imputing a subordinate\u2019s \npotential conflict to the entire office. Although Abelove separately held that prohibition does not \nreach purely investigative conduct, Petitioner relies on the distinction discussed above between \ncontrolling investigative decisions and challenging the prosecutor\u2019s legal authority to proceed.  Id. \nat 668. The assistant\u2019s exclusion in Abelove did not require the court to resolve the personal \ndisqualification claim presented here. \n2.  \nThe Attorney General\u2019s statement must be assessed under the governing disqualification \nstandard. \nRespondents claim the September 28 statement was an expression of empathy that cannot \nestablish a clear legal right to relief. (Resp. Br. at 26\u201328, 31\u201335.) A conflict alone does not require \nremoval; the record must establish actual prejudice or a sufficiently substantial risk of prejudice. \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n20 of 26\n\n--- Page 21 ---\n16 \n \nSoares, 20 N.Y.3d at 146; Schumer, 60 N.Y.2d at 55. Adams, 20 N.Y.3d at 612\u201313 (recognizing \nexceptional circumstances in which an objectively serious appearance of impropriety warrants \ndisqualification). \nThe wording of the statement matters. Attorney General James described what Doe \u201chas \nbeen forced to endure,\u201d addressed her together with \u201call survivors,\u201d and declared, \u201cWe stand with \nyou.\u201d Pet. \u00b6 7. Petitioner contends that these words communicated acceptance of Doe\u2019s account \nbefore Attorney General James received responsibility for evaluating it. The concern is the \nrelationship between that expressed credibility judgment and her subsequent authority to assess \nthe same complainant, weigh contradictory evidence, and determine whether charges are \nwarranted. Her later assurance of a fair investigation must be considered alongside the earlier \nstatement, not treated as resolving its significance. Pet. \u00b6\u00b6 44\u201348. The Governor\u2019s stated reasons \nfor supersession reinforce this concern. EO 64 identifies the need for an objective review and \nexpressly addresses the public perception of conflict or bias. Pet. Ex. 5. Yet the official selected to \nrestore that confidence had already publicly endorsed the complainant\u2019s account. Pet. \u00b6 7; Ex. 6. \nPetitioner submits that placing the investigation under her control carries forward the very concern \nabout prejudgment that an independent review was intended to address. A later promise of fairness \ndoes not, by itself, dispel that concern. \nPetitioner does not equate a prosecutor\u2019s role with that of an impartial judge. Nor does he \nclaim a right to have the evidence presented in the manner most favorable to the defense. \nRespondents\u2019 discussion of prosecutorial discretion therefore does not answer whether a prior \npublic endorsement creates a legally disqualifying risk in this particular matter. \nThe civil enforcement cases Respondents cite also involve different claims. For example, \nPeople v. National Rifle Assn. of Am., Inc., 223 A.D.3d 84, 89\u201391 (1st Dep\u2019t 2023), addressed \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n21 of 26\n\n--- Page 22 ---\n17 \n \nretaliation and selective enforcement, including probable cause and differential treatment. Matter \nof People v. Trump Org., Inc., 205 A.D.3d 625, 626\u201327 (1st Dep\u2019t 2022), rejected challenges to \ncivil investigative subpoenas, including a selective prosecution theory. Neither supplies a \ncategorical exemption from prosecutorial disqualification principles. Petitioner\u2019s claim must be \nassessed under Schumer and Adams, while recognizing that public criticism or support, without \nthe required showing of prejudice or exceptional impropriety, is insufficient. \nC.  The Court should exercise its discretion to grant appropriately limited relief.  \n1.  \nThe governing discretionary factors support relief. \nEven where prohibition is available, issuance remains discretionary. The relevant \nconsiderations include the seriousness of the harm, the adequacy of ordinary remedies, and \nwhether prohibition would effectively address the identified excess of authority. Soares, 20 N.Y.3d \nat 145. Respondents argue that the alleged harm is negligible and that motions after indictment and \ndirect appeal provide adequate remedies. (Resp. Br. at 28\u201331.) This argument is flawed. \nPetitioner\u2019s asserted harm concerns the development of the investigation, including \nassessments of credibility and decisions about what evidence to pursue. Pet. \u00b6\u00b6 57\u201358. If the Court \nfinds a disqualifying prejudgment, the practical question is whether later review would adequately \naddress investigative decisions already made under that influence. Petitioner does not rely merely \non the hardship of facing trial and a possible conviction, which alone would not justify prohibition. \nSee Rush v. Mordue, 68 N.Y.2d 348, 354 (1986). Instead, Petitioner seeks relief before the alleged \nprejudgment shapes the investigative record. If the Court finds a disqualifying risk, limiting \nAttorney General James\u2019s participation now would address its source while allowing a lawful \ninvestigation to proceed, without relying solely on later review of decisions already made. \n2.  \nRespondents overstate the categorical inapplicability of ordinary disqualification \nprinciples. \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n22 of 26\n\n--- Page 23 ---\n18 \n \nRespondents argue that the standards discussed in Schumer and Adams apply only to \njudicial appointments and therefore cannot reach a prosecutor designated by the Governor. Resp. \nBr. at 31\u201332. That argument confuses the source of authority with the legal restrictions governing \nits exercise. Adams concerned a request to disqualify an existing district attorney\u2019s office and \nappoint a replacement; it did not merely review the validity of a judicial appointment. 20 N.Y.3d \nat 610\u201313. \nMoreover, Abelove considered ordinary prosecutorial conflict principles in evaluating a \ndisqualification claim against the Attorney General acting under gubernatorial superseder \nauthority. 57 Misc. 3d at 676\u201377. Although its denial of prohibition remains relevant to the \nprocedural question, its analysis does not support Respondents\u2019 proposed categorical exemption. \nPetitioner must still satisfy the substantive standard and establish an available procedural remedy. \nBut the executive origin of Attorney General James\u2019 designation does not itself establish that an \notherwise demonstrated disqualification may be disregarded. \n3.  \nRespondents\u2019 reliance on Rivera does not establish that personal credibility endorsements \nare proper. \nRespondents cite People v. Rivera, 206 A.D.3d 1356, 1359\u201360 (3d Dep\u2019t 2022), to support \ntheir account of Attorney General James\u2019 statement. Resp. Br. at 28. Rivera distinguished limited \nreferences to the complainant as a \u201cvictim\u201d and \u201csurvivor\u201d from the prosecutor\u2019s expression of a \npersonal opinion about witness credibility, which it expressly found improper. Id. at 1359-60. The \ncourt declined to reverse because curative instructions were given and the record did not establish \nmisconduct depriving the defendant of a fair trial. Id. \nThe timing and context also distinguish Rivera. There, the court evaluated comments made \nduring a trial, where the evidence was presented to a jury and the judge gave curative instructions \naddressing the prosecutor\u2019s improper credibility opinion. 206 A.D.3d at 1359\u201360. Here, Attorney \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n23 of 26\n\n--- Page 24 ---\n19 \n \nGeneral James endorsed Doe\u2019s account before she was assigned to investigate it. The concern is \ntherefore whether that prior commitment compromises the investigative judgment entrusted to her, \nbefore the evidence reaches a jury. Rivera\u2019s conclusion that corrective instructions preserved a fair \ntrial does not resolve whether James is qualified to direct this investigation. \nD.  Any alternative challenge to the Governor\u2019s determination rests on a preserved, \nreviewable legal theory. \nRespondents state that the Petition pleads only a claim under CPLR 7803(2), \nnotwithstanding its alternative request for relief. Resp. Br. at 3 n.1. The Petition expressly invokes \nCPLR 7803(3) in paragraphs 52\u201355 and alleges arbitrary and capricious action or abuse of \ndiscretion in paragraphs 71 and 79. Its request for alternative relief is therefore presented in the \npleading, rather than raised for the first time in reply. \nRespondents separately argue that the Governor\u2019s exercise of lawful superseder discretion \nis not subject to ordinary arbitrary and capricious review. Resp. Br. at 35. Matter of Johnson v. \nPataki, substantially limits review of that discretion. 91 N.Y.2d at 223\u201324. The alternative claim \ninstead depends on whether the asserted disqualification establishes an independently reviewable \nlegal defect in Attorney General James\u2019 personal participation. If that threshold is satisfied, \nPetitioner requests relief confined to that defect. CPLR 7806 permits annulment or modification \nof a reviewable determination and directions concerning specified action. \nCONCLUSION \nBroad executive authority does not excuse prosecutorial bias or eliminate the obligation to \nexercise independent judgment. The Attorney General\u2019s public endorsement of Doe\u2019s account \nundermines the independent investigation that EO 64 expressly requires, and the Governor\u2019s \nappointment cannot cure that prejudgment.  \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n24 of 26\n\n--- Page 25 ---\n20 \n \nFor the foregoing reasons, the Court should grant the Petition, annul EO 64, and disqualify \nthe Attorney General from serving as special prosecutor in this matter. Alternatively, the Court \nshould grant narrower relief prohibiting Attorney General James from personally participating in, \ndirecting, or supervising the investigation or any resulting prosecution, together with appropriate \nsafeguards to ensure independent prosecutorial judgment. If the Court determines that the \nchallenge is premature, any dismissal should be expressly without prejudice to Petitioner\u2019s right \nto seek disqualification in the appropriate proceeding upon a developed record, without \nadjudicating the merits of that claim. \nDated: New York, New York \n \nOctober 27, 2026 \n \n \n \n \n \n \nRespectfully Submitted, \n \n \n \n \n \n \n \nNESENOFF & MILTENBERG, LLP \n \n \n \n \n \n \n \nBy: /s/ Andrew T. Miltenberg                          \n \n \n \n \n \n \nAndrew T. Miltenberg, Esq. \n \n \n \n \n \n \nStuart Bernstein, Esq.  \n \n \n \n \n \n \nTara J. Davis, Esq.  \nKirsten E. Roy, Esq. (pro hac vice forthcoming) \n \n \n \n \n \n \n363 Seventh Avenue, Fifth Floor \n \n \n \n \n \n \nNew York, New York 10001 \n \n \n \n \n \n \n(212) 736-4500 \n \n \n \n \n \n \namiltenberg@nmllplaw.com \n \n \n \n \n \n \nsbernstein@nmllplaw.com  \n \n \n \n \n \n \ntdavis@nmllplaw.com \nkroy@nmllplaw.com \n \nAttorneys for Petitioner \n \n \n \n \n \n \n \n \n \n \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n25 of 26\n\n--- Page 26 ---\n21 \n \nSTATEMENT PURSUANT TO 22 NYCRR 202.8-b \nI, Andrew T. Miltenberg, affirm under penalty of perjury pursuant to CPLR 2106 that the \ntotal number of words in the foregoing Reply Memorandum of Law, inclusive of point headings \nand footnotes and exclusive of pages containing the caption, table of contents, table of authorities, \nand signature block, is 5,788 words. The foregoing Reply Memorandum of Law does not comply \nwith the word count limit set forth in 22 NYCRR 202.8-b. However, this Court granted Petitioner\u2019s  \nrequest to submit a Reply Memorandum of Law of up to 6,500 words and this Reply Memorandum \nof Law complies with the permission granted by the Court. In determining the number of words in \nthe foregoing Reply Memorandum of Law, I relied upon the word count of the word-processing \nsystem used to prepare the document. \n/s/ Andrew T. Miltenberg \n \n \n \n \n \n \n \n \nAndrew T. Miltenberg  \nFILED: ALBANY COUNTY CLERK 10/27/2026 06:10 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 24\nRECEIVED NYSCEF: 10/27/2026\n26 of 26","thumbnailUrl":"https://lucycraig.blog/media/671/thumb.webp","transcriptStatus":"not_applicable","transcriptText":"","url":"https://lucycraig.blog/media/671"}