{"@context":"https://schema.org","@type":"DigitalDocument","altText":"Public administrative PDF \u2014 case-20f2fbf9d925 entry #27","alternateName":"needs-review-4cf3c0fba5-911974_26_Gillio_Lopes_v_Kathleen_M_Hochul_et_al_EXHIBIT_S__27.pdf","caption":"","contentUrl":"https://lucycraig.blog/media/758/raw","datePublished":"2026-11-05T23:40:07+00:00","description":"","encodingFormat":"application/pdf","identifier":"758","isAccessibleForFree":true,"machineReadable":{"json":"https://lucycraig.blog/media/758/index.json","markdown":"https://lucycraig.blog/media/758/index.md"},"name":"Public administrative PDF \u2014 case-20f2fbf9d925 entry #27","ocrStatus":"ready","ocrText":"--- Page 1 ---\nExhibit 1 \n \n \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 2 ---\n1\nSUPREME COURT OF THE STATE OF NEW YORK\nCOUNTY OF ALBANY\n---------------------------------------------------------------X\nIn the matter of the application of\nGILLIO LOPES, \n \nPetitioner,\nFOR A JUDGEMENT PURSUANT TO\nARTICLE 78 AND SECTION 3001 OF\nTHE CPLR\n-against-\nIndex No.\n911974-26\nKATHY HOCHUL, 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,\nRespondents.\n---------------------------------------------------------------X\nARTICLE 78 Hearing\nLawrence H. Cooke\nSullivan Supreme & County Court\n     414 Broadway\nMonticello, New York 12701\nOctober 29, 2026\nB E F O R E:  HONORABLE JAMES FARRELL\n Acting Justice of the Supreme Court\nA P P E A R A N C E S:\nNESENOFF & MILTENBERG LLP\nAttorneys for the Petitioner\n363 Seventh Avenue, 5th Floor\nNew York, New York 10001\nBY: STUART BERNSTEIN, ESQ.  \n    ANDREW MILTENBERG, ESQ.\nLETITIA JAMES\nSTATE OF NEW YORK ATTORNEY GENERAL\nAttorneys for the Respondents\nThe Capital\nAlbany, New York 12224\nBY: KAITLIN VIGARS, ESQ.\n    JOHN MOORE, ESQ.\n________________________________________________________________\nNICOLE DUBATOWKA\nCourt Reporter\n \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 3 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n2\nTHE COURT CLERK:  Case one on the calendar Gillio \nLopes vs. Kathleen Hochul and Letitia James.  Index number \n911974-26 on for hearing.  Appearances for the record \nplease. \nMR. BERNSTEIN:  Stuart Bernstein for Mr. Lopes. \nMR. MILTENBERG:  Andrew Miltenberg, Nesenoff and \nMiltenberg with Mr. Bernstein, Judge.  \nMS. VIGARS:  Assistant Attorney General Kaitlin \nVigars here with my colleague, Assistant Attorney General \nJohn Moore from the Office of the New York State Attorney \nGeneral for Respondents Kathy Hochul, Governor of the State \nof New York and Letitia James, New York State Attorney \nGeneral.\nTHE COURT:  Thank you, welcome counsel.  I'll hear \nfrom the Petitioner.  30 minutes. \nMR. BERNSTEIN:  Stand, sit?  \nTHE COURT:  Stand please.\nMR. BERNSTEIN:  Thank you.  Good afternoon, Your \nHonor, counsel.  My name is Stuart Bernstein, my partner \nAndrew Miltenberg, we represent the Petitioner, Gillio Lopes \nin this case.  I am in my 37th year of practicing law, Your \nHonor and the first eight as an assistant district attorney \nin New York County under the Honorable Robert M. Morgenthau \nand the office of special narcotics prosecutor.  There was \nno greater honor than to be to standing before a jury and \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 4 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n3\ndoing opening statements and saying I represent the People \nof the State of New York.  That statement meant, all of the \npeople.  Criminal defense attorneys, they have one client \nbut as I know, Your Honor is aware, district attorneys and \nassistant district attorneys represent all of the citizens \nof their counties that they represent and in this case \nAttorney General James, represents all of the citizens of \nNew York State.  She is supposed to represent all of them \nand as we will discuss throughout the afternoon, \nunfortunately she has failed that obligation from the \nget-go.  \nAs the Court of Appeals explained in People v. \nSantorelli, prosecutors have special responsibilities to \nsafeguard the integrity of the criminal proceedings and \nfairness of the criminal process.  Those responsibilities \nrequire a prosecutor to test competing accounts, consider \nconjure evidence and change course when the evidence \nwarrants.  \nThat obligation is the backbone and foundation of \nour petition.  The standard we ask this Court to apply would \nbe the same regardless of who the prosecutor was, the \npolitical affiliations, the identity.  It would have \nabsolutely nothing to do with that.  The only party that \nrespectfully brought political issue into this case, is the \nState.  The State keeps answering questions challenging that \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 5 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n4\nwe are not asking.  We are not challenging the Governor's \nauthority to supersede the Tompkins County District \nAttorney.  I will say that now Your Honor, and I will say it \nprobably a lot of times throughout this afternoon.  We are \nnot asking this Court to supervise an investigation.  We are \nsimply asking Your Honor, based on the facts of this case, \nthat whether the official chosen by the Governor to carry \nout the Governor's vision to restore confidence in a \nobjective independent investigation is and was qualified to \ndo so.  \nIt is our opinion and what our papers support, is \nthat Attorney General James is not that person and is not \nqualified in this specific case, again I want to be very \nclear, Your Honor, we are talking about this specific case.  \nAnd based on Attorney General James' statement on September \n28th that we will get into where she publicly aligned \nherself with a complainant in a civil and criminal manner \nthat, that appointed is no longer a viable appointment.  \nRespectfully, Your Honor, that is the question \nbefore you.  We submit that this case appears to be a case \nof first impression.  There's a lot of cases cited by both \nsides, maybe six to ten important cases.  None of them bear \non these cases.  It's more like a jigsaw puzzle, your Honor \nwhere we take rationals and holdings from different cases \nand come to here, and come to this case.  What happened in \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 6 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n5\nthis case, Your Honor is a perfect storm and I will go \nthrough that very shortly.  \nThe Petitioner is seeking only again, we are not \nlooking for a wide sweeping referendum here, Your Honor.  \nThis is a very specific request, that Your Honor disqualify \nand invalidate Executive Order 64 appointing Attorney \nGeneral James as a special prosecutor in this case and send \nit back to the Governor.  Not asking you to step in and to \nrun the investigation, not asking you step in and pick \nsomeone.  Again, we are not saying and we are not asking you \nto say that the Governor, it's really important, we are not \nasking you to say, the Governor does not have the right to \nsupersede.  We are just saying that the qualifications of \nthe person she selected are not legally sufficient and we \nbelieve the case law allows you, Your Honor, to make that \ndetermination.  \nTurning to the facts of this case.  On Monday \nSeptember 28th at approximately 6:13 p.m. Attorney General \nJames on the official Attorney General X account issued a \npost and Your Honor that is exhibit six in our moving papers \nand I believe, exhibit A in the States--  the State didn't \ninclude it.  It's exhibit six in our papers. \nTHE COURT:  The State did not include it.   \nMR. BERNSTEIN:  I don't believe the State included \nAG James' post as an exhibit.  The only exhibit I believe \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 7 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n6\nthey have is Exhibit A, Executive Order 64, which is exhibit \nsix in our papers.  \nAttorney General James at 6:15 on September 28th \nwrites, \"what this young woman has been forced to endure is \nhorrific and unacceptable.  I'm holding her in my heart and \nin my prayers.  To her and to all survivors: You're not \nalone.  We stand with you.\"  \nYour Honor, that and we'll talk about it and I'm \nsure the State will talk about it.  That is not a empathetic \nstatement.  They claim that Attorney General James made an \nempathetic statement.  That is not an empathetic statement, \nYour Honor.  This is a very specific statement and if you \nlook at three specific parts here, what this young woman has \nforced to endure.  So that Your Honor, Attorney General \nJames, has now accepted what has allegedly happened, has \nhappened.  That is a foregone conclusion.  What this young \nwoman has been forced to endure is horrific.  I'm holding \nher, so now Attorney General James is now making it \npersonal.  It's not a generalization that all crime is bad \nor sexual assault is bad and that would potentially be an \nempathetic statement that someone would make, this is not.  \nThis is a very, very specific, I'm holding her in my heart \nand in my prayers.  To her, again the next line, to her, a \nvery specific not a generalized statement.  To her and to \nall survivors.  Respectfully, Your Honor if you look in the \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 8 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n7\ndictionary, the word survivor means something has happened \nto someone.  So the Attorney General has clearly made a \ndecision that something horrific has happened to this young \nwoman.  \nShe's the Attorney General of the State of New \nYork.  The highest ranking law enforcement official in this \nstate.  She should not be making those statements.  \nRespectfully, I think it violates several mechanics of \nethics.  As the sitting Attorney General for the State, she \nhas made a decision, she has made a determination.  Your \nHonor, also absent from the State's papers is a declaration \nfrom Attorney General James explaining it.  It wasn't \nimportant enough or she couldn't explain it.  All their \npapers say, it was an empathy statement, that is written by \ncounsel but nothing from Attorney General James herself or \nthe Governor explaining their actions.  I guess they don't \nthink they have to, that is up to them, Your Honor.  I'm \njust saying, there is no declaration from Attorney General \nJames explaining this statement.  \nI think what is lost in this media coverage, Your \nHonor, obviously it's covered.  I think what gets lost a \nlittle is what happens the next day.  September 29th, Your \nHonor, Governor Hochul issued a press release and that is \nexhibit four in our papers.  \nAnd the second paragraph of Governor Hochul's press \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 9 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n8\nrelease on September 29th states, \"I support the district \nattorney's decision to reopen the criminal investigation.\" \nTHE COURT:  That was before the appointment of the \nAttorney General?  \nMR. BERNSTEIN:  Exactly.  So on the 28th AG James \nmakes that statement.  On the 29th, Governor Hochul is \nsupporting District Attorney Van Houten for him reopening \nthe investigation and then on October 1st comes the \nsuperseding appointment of Attorney General James.  We don't \nhave anything that happened in between.  We have a public \nstatement from the governor supporting District Attorney Van \nHouten. \nTHE COURT:  He made a statement that he was going \nto reopen it, yes?  \nMR. BERNSTEIN:  Correct and the Governor supported \nit on the 29th.  Now we go to the 1st, where we have \nExecutive Order 64 which is exhibit five in our papers and I \nbelieve exhibit A in the State's papers.  Your Honor, we \nlook at it, there are one, two, three, there are five \nwhereas causes.  And the first whereas cause states, Article \nfour section three of the Constitution of the State of New \nYork obligates the Governor to take care that the laws are \nfaithfully executed.  \nWe'll come back to the word faithfully shortly.  \nBut that is the first wherefore clause.  Wherefore clause \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 10 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n9\nnumber four, \"whereas concerns have been raised both by Jane \nDoe and the public that this incident cannot be fully and \nthoroughly investigated or prosecuted without conflict or \nbias or that the public perception of conflict of bias.\"  \nThe public conception--perception of conflict of bias.  The \nlast whereas clause, \"whereas the criminal justice process \nmust be guided by the facts of the law and the public \ninterest requires an objective review.\"  \nYour Honor, I'm not trying be funny, I'm not trying \nto be flippant or sarcastic.  When you look at the \nGovernor's Executive Order and you look at Attorney General \nJames' post, it really looks, it could be argued that the \nGovernor is writing about the post of Letitia James.  She \nhas shown that she is not objective, she has shown she is \nbias and the Governor's specific Executive Order writes, \n\"the public interest requires, so she talks about the public \nbut more importantly above it writes, \"Jane Doe in the \npublic that the incident cannot be fully and thoroughly \ninvestigated, prosecuted without conflict of bias.\"  Your \nHonor, if you look at exhibit six our copy of AG James' post \nand it just jumped out at me, there are posts after people, \nyou I guess how that works, you can like something and not \nlike something.  If you look at the first two post that are \non this page and we just submitted the first two posts here.  \nThere is a gentleman Ryan he says, \"so much for the \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 11 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n10\npresumption of innocence, LOL.\"  The next one by a person \nnamed Lori says, \"you should be removed from service.\"  Now, \nthat's the public, that's the public's initial reaction to \nAG James' post.  When I said I wasn't joking, Your Honor \nthat specifically is what Governor Hochul was looking to \nchange.  There was apparently some perception having to do \nwith the Tompkins County DA's office and the society and \npublic lost faith in him.  \nRespectfully, the public has lost faith immediately \nwith Attorney General James on the 28th.  She has shown no \npresumption of innocence, she has shown that she has picked \nsides.  So, the question before Your Honor, respectfully is, \nis she qualified as the special prosecutor in this case.  \nNot does Governor Hochul have the right to supersede and \nthat is an important distinction because the government, the \nState, in their papers continue to argue executive \nprivilege, they continue to argue the Governor has the power \nto supersede.  Again, for the umpteenth time, we are not \narguing that.  And it is clear from the post that Attorney \nGeneral James has accepted the facts as she had heard them.  \nWhether she heard them on the news or however she had heard \nthem on September 28th she accepted them.  \nBy saying, clearly and unambiguously, what this \nyoung woman has been forced to endure is horrific.  She has \naccepted that what she said happened, has happened.  How \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 12 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n11\ndoes that play into the this case, Your Honor.  \nOur papers, the State put in papers, we put in lots \nof moving, and then our reply which addresses all their \narguments.  I will answer any and all your questions, Your \nHonor and I will try to address all of them.  \nThose statements make this a ripe case right now.  \nWe can discuss that and I will discuss that in a little bit.  \nBut, right now going back to the Governor's discretion of \nauthority.  Again, we are not here saying, we want DA Van \nHouten back that is not why we are here.  DA Van Houten is \nnot here saying I want to be back on.  That would be \nchallenging Governor Hochul's authority.  Just like we saw \nwith regards to Johnson V. Pataki where the Court of Appeals \nwould not step in and say Governor Pataki didn't have the \nright to replace DA Johnson when he basically came out and \nsaid, long before that I will never seek the death penalty \nand Governor Pataki took all potential death penalty case \naway from him.  The Court of Appeals said you can't-- we are \nnot going to substitute the Governor's mindset, thinking and \nthat is what the State says here, you can't do what we are \nasking you to do because we are looking to supersede the \nGovernor's mindset.  We're not.  We're not saying the \nGovernor can't, and in the State of New York, Your Honor, I \nfind it hard to believe that there is not a single unbiased \nformer federal prosecutor, former attorney that can step in \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 13 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n12\nand be a special prosecutor.  In fact, we invite that.  Mr. \nLopes-- \nTHE COURT:  Let me ask you a question about that.\nMR. BERNSTEIN:  Sure.\nTHE COURT:  I got to hone in a little bit on your \nvenue.  I'm a little bit concerned number one, about \njoinder.  So, let me ask you this question.  Tompkins County \nis the Third Judicial District.  I'm sorry, is not in the \nthird, it's in the fourth.  Is this case number one, \nproperly venued?  That is my first question and number two, \nare there other litigants, are they joined.  The alligation \nhere is of a multi-potential suspect case.  Is it not just \nyour client, right?  There is six other people.  They're not \npart of this litigation, why?  \nMR. BERNSTEIN:  So -- \nTHE COURT:  And if I agree with you, say I agree \nwith you for the moment and she should be removed.  Does she \nget removed for your client's case and the other six have \nher as special prosecutor, how does that work?  Multiple \nprosecutors for different defendants?  \nMR. BERNSTEIN:  Your Honor in regards to venue-- \nTHE COURT:  Answer that question first. \nMR. BERNSTEIN:  Sure.  Your Honor, why the other \nsix have not joined I just don't know that answer.  I don't \nbelieve it is materially necessarily here they can joinder.  \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 14 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n13\nThey could always be brought in. The State didn't bring them \nin their papers.  \nTHE COURT:  Why didn't you bring them.  I know the \nState didn't but the Court has to be mindful of piecemeal \nlitigation and they may want the Attorney General to stay on \nthe case, I don't know they haven't appeared.  Although, on \npage ten of your affirmation you indicate that they would \nalso be prejudice but they are not saying that. \nMR. BERNSTEIN:  Your Honor, I think that they would \nreap the benefits of our work and we came-- they at no point \nas much as I hear you saying is that if they want the \nAttorney General they never moved to join.  They never \nmoved-- \nTHE COURT:  You never also served them.  You never \njoined them yourself. \nMR. BERNSTEIN:  Honestly Your Honor, I don't know \nwho they are.  I don't know their attorneys, I don't know \nanything.  We do know there is another proceeding in the In \nre grand jury in Tompkins County. \nTHE COURT:  I'll ask about that.  What about that, \nwhat is the status of that?  \nMR. BERNSTEIN:  Your Honor, I have no idea.  There \nis no public filing on that in criminal court. \nTHE COURT:  What if I agree with you and that judge \nover there disagrees with me and now we have two different \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 15 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n14\ndecisions or I disagree with you and they agree with your \nposition.  What happens then?  \nMR. BERNSTEIN:  Your Honor, what happens then is I \nbelieve that your Article 78 -- \nTHE COURT:  I'm not the Appellate Court. \nMR. BERNSTEIN:  Your decision on the Article 78 \nPetition Your Honor, is the one that would be control.\nTHE COURT:  I'm a court of court of jurisdiction \nwith a superior court Judge of Tompkins County over the \ngrand jury.  We are equal. \nMR. BERNSTEIN:  Judge, I have no knowledge of the \ngrand jury being impanelled in Tompkins County. \nTHE COURT:  You just said that there is litigation \nthere In re Tomkins County grand Jury.  I assume that goes \nto the grand jury judge. \nMR. BERNSTEIN:  I saw a filing.  I see no papers by \nanyone opposing it by the state, there has been no filing, \nthere is no nothing, there is no caption, no index number.  \nThere is no mechanism for that to even have a case to be \nviable.  I don't know what counsel has done in that case, \nMr. Lee's counsel, I know it is Mr. Lee.  In terms of here, \njoinder Your Honor, going back to the argument here.  No one \nhas put in that they oppose it.  No one has come in, the \nState hasn't opposed it. \nTHE COURT:  I don't even know--you said you don't \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 16 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n15\neven know who these folks are.  I don't know if they know \nabout it.  Maybe they don't know about it, is that possible?  \nMR. BERNSTEIN:  Respectfully, Your Honor, anything \nis possible.  I know there is a civil matter.  In terms of \nthis process is it possible they don't know about it, I \nwould find it hard to believe with the amount of press that \nthis is covered.  I'd be very, very shocked if they didn't \nknow about it.  In terms of the joinder statute itself, Your \nHonor, I believe Your Honor can order us to serve, to \nattempt to serve, if we brought them in.  I don't believe \nthat is a linchpin for potential denial of this case.  Your \nHonor, is it possible Mr. Miltenberg address something as \nwell.  \nTHE COURT:  He may.  I need an answer to that.  You \ncan't have one court ruling in one direction and another \ncourt ruling in another direction and there be uncertainty.  \nThat is not fair, that is not fair to anyone. \nMR. MILTENBERG:  I would submit to you that this \nquestion of whether the Attorney General in this case has \nmade a predetermination or predisposition is not \nparticularly litigable by any single defendant in the civil \ncase.  It's is a question sort of, it's a foundation \nquestion as to this litigation.  It's a determination that I \nthink has to be made whether it affects one person, five of \nthe seven, three of seven, seven of the seven, whatever the \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 17 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n16\ncase may be.  \nEither this Court determines that the statements \nmade by Attorney General James take her out of contention to \nbe a neutral party objectively reviewing this case or the \nCourt determines that it's okay for her to continue.  \nIt's not particularly owned, this issued isn't \nowned by any one defendant.  This is, as far as we are \nconcerned how we see it, a statewide issue.  This is an \noriginal sin if you will, for this particular case and there \nis no, as far as we are concerned, other competing pending \nlitigation on this particular issue but this -- \nTHE COURT:  There is what your co-counsel indicated \nwas application before the grand jury Judge in Tompkins \nCounty. \nMR. MILTENBERG:  There is but I don't think that \nspecifically addresses this foundational issue. \nTHE COURT:  Couldn't you bring this up if your \nclient was eventually charged?  Could you ask for her to be \nremoved?  \nMR. MILTENBERG:  I think at that point, considering \nthe fact that the role of special investigator/ prosecutor \nis to commence the review with a clean slate. \nTHE COURT:  But the facts don't change, do they?  \nMR. MILTENBERG:  Well, exactly that is part of the \nconcern here.  Is not only did the facts not change but the \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 18 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n17\nacceptance by the Attorney General of facts central, facts \nthat are foundation to Jane Doe's claims is not going to \nchange.  We need, the State needs, the people need.  I want \nto think about how we got here.  We got here today because \npeople were not satisfied with the investigation done by \nCornell and the results of that.  We are here because people \nwere not satisfied with the Tompkins County District \nAttorney's approach with this.  \nWhy do we need to put the People of the State in \nthe position of again, lacking confidence in result because \nof an apparent predetermination of appearance whether or not \nAttorney General James is bias, in this particular case we \nargue that she is, the appearance of an impropriety, a \npredetermination we believe is enough.  \nThis is a question that has to be answered \nregardless of who brings it up and we submit that should be \nthe focus of what this Court looks at. \nMR. BERNSTEIN:  Your Honor, if I can piggyback on \nthe question regarding is it premature and can it wait until \nafter.  I think the Court of Appeals in Fisher addresses \nthat, it says, \"it's not in the publics interest to allow a \nprosecutor to carry out a lengthy investigation when there \nis doubt.\"  Which respectfully Your Honor, we have submitted \na lot of doubt that keeping her appointed is valid.  \"And to \nrun the risk that the process will have to start over again \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 19 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n18\nwith a different prosecutor.\"  It just makes no sense and \nthe Court of Appeals allowed for an inquiry as to \nappointment of the prosecutor at the early stages not having \nto wait to it.  Along that same line Your Honor, our client \nis identified, the Governor has basically identified him in \nterms of being in the scope of the investigation.  It's not \nspeculative, Your Honor.  The Governor in her Executive \nOrder, in the second wherefore clause identifies the \nspecific lawsuit, the State in their answer admitted that \nMr. Lopes falls within the scope of Attorney General's \npotential investigation, that he is an identified person.  \nSo, he clearly, it's not speculative, Your Honor \nhe's named in the Attorney General investigation which \nincludes what Mr. Miltenberg was saying Your Honor, the \ninvestigation begins with and you know this better than \nanyone, a prosecutor with the set ideas in their head of \nwhere this investigation is going to go.  A creditability \nassessment, what witnesses, all of these are \npre-investigated decisions.  Respectfully, Attorney General \nJames has already made, has already made in a favor of Jane \nDoe and against the alleged potential perpetrators.  How, \nand Your Honor, again, she, Attorney General James, is \nsuppose to represent all of the people having read that \nstatement, how is Mr. Lopes and the other potential people \nthat could face criminal prosecution, how are they supposed \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 20 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n19\nto feel as a citizen.  How are they suppose to feel that the \nperson that is in charge of this investigation has already \npredetermined it.  \nThey are entitled to a right of a fair and unbiased \ninvestigation which Attorney General James through her \nstatement made clear will not happen.  The Court of Appeals \nin Fisher says, we don't have to wait until the end.  \nRespectfully, that is where we are.  Your Honor, I think \nthere was a unanswered question with regards to venue. \nTHE COURT:  I understand why the venue is in Albany \nCounty, I understand that.  She is the Attorney General of \nthe State of New York.  You could have venued it to Tompkins \ncouldn't you?  \nMR. BERNSTEIN:  Respectfully, if we move a Article \n78, I don't think we can Your Honor.  Article 78, according \nto my understanding of the CPLR and the law has to be where \nthe action took place and Governor Hochul's Executive Order \n64 took place in Albany.  That is where the seal and \neverything is, it took place in Albany.  The action of the \nExecutive 64 which we are contesting, we are not contesting \nthe statement of Attorney General James, we are contesting \nthe appointment of Attorney General James and that occurred \nin Albany County.  Could venue come in different places, \nYour Honor, I think that is also possible you could have \nvenue in different statutes.  I think clearly and \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 21 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n20\nrespectfully that venue is appropriate here in Albany County \nbased on Executive Order 64. \nTHE COURT:  Okay, anything further?  You have one \nminute left. \nMR. MILTENBERG:  I submit, Your Honor this is too \nimportant of a question to exalt formal resubstance \nreviewing with -- \nTHE COURT:  It's not formal resubstance if you have \nmultiple courts coming down with different decisions.  You \nhave chaos. \nMR. MILTENBERG:  I agree with you.  Nonetheless, \nthis is the original question that must be answered. \nTHE COURT:  And the court system should not \nengender or support any fashion chaos, we should be the \nantithesis of that. \nMR. MILTENBERG:  Certainly. \nTHE COURT:  Thank you. \nMR. BERNSTEIN:  Lastly again, I think joinder is \npermissible.  If you are inclined to decline the petition I \nask Your Honor, that it be done without prejudice. \nTHE COURT:  Thank you.  Who is arguing on behalf of \nthe attorney general and the government?  \nMS. VIGARS:  Yes, Assistant Attorney General \nKaitlin Vigars.  Good afternoon, Your Honor.  Just initially \non the procedural question you just raised with Petitioner's \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 22 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n21\ncounsel.  I do want to stress that, County Law Section 701 \nsubdivision 6 does provide for a specific process for \nhanding disqualification of the Attorney General that would \nrequire to Your Honor's point, the matter to be venued in \nthe county where the criminal matter is triable.  \nTo Your Honor's point and this is addressed in our \npapers, we do think that process attempts to elevate some of \nthe organizational concerns that you just raised. \nTHE COURT:  You didn't raise that specific issue \nthough. \nMS. VIGARS:  Well we raised -- \nTHE COURT:  You didn't raise the issue of multiple \ncourts hearing multiple applications.  Nor the fact that the \nsix others were not joined or ought to be joined or should \nbe joined or could affect something that involved their \nrights.  I know what the Petitioner's argued but you didn't \nargue that in your papers, did you?  \nMS. VIGARS:  We did not.  But we did argue about \nCounty Law Section 701 subdivision 6 in our papers.  I \npointed out here, just because I do think it answers your \nquestions about concerns about chaos and organizing and \nmarshalling the process.  I do also want to highlight a \nnumber of other procedural concerns that are dispositive \nhere.  \nAs indicated in our papers, there are several \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 23 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n22\njusticiability issues that prevent this Court from reaching \nthe merits of Petitioner's claim here.  Justiciability is \nimportant threshold consideration that goes to the very \npower of the court to adjudicate the dispute.  It \nencompasses a number of concepts as relevant here, ripeness, \nstanding and a political question doctrine.  \nFirst with respect to ripeness, the Petitioner must \nestablish that judicial review is both appropriate and that \nhe would suffer hardship if relief is denied.  Petitioner \nhere fails that second prong, the issue of the hardship.  \nSpecifically, with respect to hardship to constitute \nhardship for purposes of ripeness, the harm alleged must be \nsufficiently direct immediate and felt in a concrete way.  \nThe harm can't be remote or contingent.  The harm alleged \nhere is essentially that the investigation will be \nimproperly conducted and that would potentially prejudice \nPetitioner in a future criminal proceeding but that harm \nrelies on several unknown future events, which we don't know \nif they are going to occur.  \nFor Petitioner to experience that harm, first he \nwould need to, the result of the investigation would need to \nimplicate him, the results of the investigation would need \nto implicate him in such a way that it supports presentation \nto the grand jury and ultimately the grand jury would need \nto vote to indict the petition.  \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 24 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n23\nSo, even if as Petitioner has claimed it's true \nthat the statement by the Attorney General, the very brief \nstatement on social media by the Attorney General, were to \nestablish that she was going to somehow act improperly here \nit wouldn't necessarily solve that third piece of whether or \nnot this ever will ripen into a criminal prosecution, \nwhether the grand jury will vote to indict.  \nI also want to note that Petitioner in his papers \nhas claimed a separate harm of prejudice in a separate civil \nproceeding.  That is raised improperly for the first time in \nhis reply.  Even it were properly before the Court again, it \nrests on number of assumptions about how the investigation \nwould be conducted and ultimately what the result of that \ninvestigation will be.\nTurning to the second justiciability issue \naddressed in our papers, is the issue of standing.  To \nestablish standing it is the Petitioner's burden to show \nthat he has suffered an injury-in-fact and that, that injury \nis within the zone of interest of the statute under which \nthe government has acted.  So for many, for actually all of \nthe same reasons that Petitioner's claim is not ripe his \ninjury-in-fact, is all not sufficiently concrete.  So to be \nan injury-in-fact the harm alleged by Petitioner has to be \nconcrete.  It can't be speculative or contingent or depend \non unknown future events and for the same reason his claim \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 25 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n24\nisn't ripe, it's not an injury in fact.  \nEven if this were a sufficient injury it's not an \ninjury within the zone of interest of Executive Law Section \n63 subdivision 2.  Executive Law Section 63 subdivision 2 \nexists as a statutory mechanism for the legislator to \napportion power throughout the executive branch.\nSo, under the New York State Constitution, there \nare constitutional officers that have law enforcement \nauthority.  That's the Governor, the Attorney General and \nthe District Attorney.  The constitution doesn't spell out \nwho possesses what authority or prosecutorial \nresponsibilities.  That is traditionally left to the \nlegislator to decide who is going to do what and Executive \nLaw Section 63 subdivision 2, is how the legislator has \nchosen to exercise it's authority to apportion law \nenforcement authority throughout the executive branch.  \nThe structural and functional interest served by \nExecutive Law Section 63 subdivision 2 don't bear any \nrelationship to the sort of individualized injury to someone \nthat presumes they might be eventually subject to a criminal \nprosecution.  It's really a power sharing statute that \ndoesn't necessarily or that does not have any relationship \nto the rights of an accused.\nTo the extent that the Petitioner is for the first \ntime in his reply, claiming that he is also asserting some \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 26 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n25\nsort of interest in fairness in the criminal process.  I do \nwant to stress again, there is no criminal proceedings at \nthis stage.  We are in a very early stages of an \ninvestigation.  If this does ripen into a criminal \nproceeding, the character of the government action would \nnecessarily change, which would change the standing \ncalculus.  Potentially if there were an indictment, now the \ngovernment is acting under the criminal procedure law which \nchanges the standing calculus in a material way.  \nThird, the political question doctrine is the third \njusticiability principle that bars Petitioner's claims here.  \nThe political question doctrine is a separation of powers \nprinciple.  It prohibits courts from reviewing the \ndiscretionary determinations of actions that are properly \ntasked to the executive and the legislative branch.  Here, \nthe Petitioner claims violates the political question \ndoctrine in three main ways.  \nFirst, with respect to the executive branch, \nPetitioner essentially is asking this Court to review how \nthe Governor has exercised her discretionary authority to \nsupersede the district attorney.  Though Petitioner here, is \nattempting to distinguish their claim.  Ultimately, I think \na lot of the argument that you heard and a lot of argument \nthat's in their papers goes ultimately at bottom to a \ndisagreement with her choice.  Ultimately, that is exactly \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 27 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n26\nthe sort of claim that is not reviewable by courts.  \nAdditionally, with respect to the executive branch \nessentially Petitioner is asking this Court based on his \nfears of how the Attorney General may exercise her \nprosecutorial discretion to restrain her from acting.  \nGenerally speaking, courts are prohibited from weighing in \non how a prosecutor exercises their prosecutorial \ndiscretion.  \nThird, the Petitioner here, the claim here, also \nasks this Court to improperly invade the province of the \nlegislative branch.  The legislative branch here has enacted \nExecutive Law Section 63 subdivision 2 to give the Governor \nauthority task the Attorney General to conduct \ninvestigations.  It doesn't include any standard for the \nGovernor to act and it doesn't require her to explain her \nchoice.  The only requirement is that she identify the \nsubject matter of the investigation and there is numerous \ncase law cited in our papers that all supports this point.  \nPetitioner's argument here today, is essentially \nasking this Court to graft on to Executive Law Section 63 \nsubdivision 2 an external qualification requirement.  That \nexternal qualification requirement, it doesn't exist in the \nstatutory language, it doesn't exist in the constitutional \nprovision under which the governor has acted.  It would \ncontravene the legislator's specific policy choice to \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 28 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n27\ncountenance that argument here.   \nI think this point is nicely illustrated in matter \nof Mulroy vs. Carey.  In that case, very much like \nPetitioners are asking this Court to do here, the \nPetitioners in that case, which included the District \nAttorney who had been displaced were essentially arguing \nthat the Governor's decision wasn't reasonable and that \nthere should be some sort of standard of review.\nThe fourth Department, in matter of Mulroy vs. \nCarey, which was eventually affirmed by the Court of Appeals \nspecifically held that this was a separation of power \nissues.  The legislator has very obviously made this choice \nand it's not for the courts to second guess or to graft on \nthese additional standards.  \nFinally too, I just want to again point to County \nLaw Section 701 Subdivision 6.  As I indicated at the \nbeginning of my remarks, the legislator has enumerated a \nspecific and exclusive process for handing disqualification \nof the Attorney General allowing Petitioner to utilize an \nalternative process again contravenes that legislative \nchoice.  \nFinally, just on the justiciability piece.  I do \njust want to note that matter of Schumer v. Holtzman I think \nnicely illustrates the justiciability issues that prevent \nthe court from acting here.  In that case the parties had \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 29 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n28\nspecifically waived justiciability. \nTHE COURT:  Can we go back for a moment to the case \nyou cited Mulroy.\nMS. VIGARS:  Yes.\nTHE COURT:  Didn't the Court of Appeals say no view \nis expressed whether in any or all circumstance the exercise \nof executive power supersede an elected DA would be beyond \njudicial review.  We are not talking about an elected DA \nhere.  Didn't it also say that?  \nMS. VIGARS:  Yes.  They did leave open that there \nwas a possibility of potentially a way for litigant to bring \nthis sort of claim.  Yes, I acknowledge that-- \nTHE COURT:  Didn't they in Johnson V. Pataki \naddress the merits of the claim that the Governor had \nappointed the Attorney General in an abusive discretion.  \nDid they in one paragraph and then submit it descends, \nDetone in their descend say, the majority address the \nmerits.  Why did they address the merits if it's \nunreviewable?  \nMS. VIGARS:  Your Honor, the reason they addressed \nthe merits.  This is not just specific to Johnson v. Pataki \nthere are a number of cases that indicate this.  Not \nwithstanding the fact that Executive Law Section 63 \nSubdivision 2 doesn't require a standard and it doesn't \nrequire the Governor to explain their choice.\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 30 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n29\nTHE COURT:  But she did. \nMS. VIGARS:  Some governors have done so \naffirmatively.  \nTHE COURT:  But she did explain her choice, right.  \nOr why she was doing it, right to avoid conflict, to avoid \nbias, to get an objective review.  These were words that \nwere used in the executive order. \nMS. VIGARS:  Yes those are the words that in the \nexecutive order.  Sorry, to your specific point, with \nrespect to Johnson, I believe the reason that the Court \naddressed the discretionary issue there is because in that \ncase Governor Pataki had specifically held himself out as \nmaking some sort of statement of necessity or explaining his \nchoice.  I think here the language of the executive order to \nyour point, though it does provide some explanation, is it \nnot the sort of explanation that was discussed and at issue \nin matter of Johnson v. Pataki.  \nTHE COURT:  Why then would the Court, Judge Kaye \nwrote that opinion.  Very, very smart Judge.  Why would she \nhad weighed it into that issue.  Maybe she got voted into by \nSmith or Detone.  I don't know because their descends were \npretty strong.  The majority in that particular case, did \naddress the merits, they did.  If it's non-reviewable then \nwhy would the Court even go through the trouble of even \naddressing it. \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 31 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n30\nMS. VIGARS:  Again, I think the Court of Appeals \nexplains that in the decision that they were addressing it \nbecause some governors have affirmatively gone beyond what \nthe statute requires and so they were addressing it there.  \nUltimately, Johnson v. Pataki it stands for the proposition \nthat the Governor's determination is incredibility broad \nhere and it's just not reviewable at the level of detail \nthat Petitioner, his claims indicate. \nTHE COURT:  Can I ask a couple of questions \nregarding the facts of this particular situation.  Did the \nGovernor know when she appointed the Attorney General, that \nthe Attorney General had made the social media post that is \nattached the Petitioner's papers, exhibit 4?  \nMS. VIGARS:  Yes, presumably giving the timing that \nthe statement was before the appointment, the Governor was \naware of the statement and notwithstanding the statement she \nnevertheless chose to exercise her discretion to appoint the \nAttorney General to this position. \nTHE COURT:  So she was aware of it and appointed \nthe Attorney General notwithstanding the contents of it, \nyes?  \nMS. VIGARS:  Yes. \nTHE COURT:  I have another question, it was raised \nsort of but not really.  I see here in exhibit four, which \nis a statement from the Governor and it was pointed out by \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 32 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n31\nPetitioner just a few moments ago.  That she supported the \ndecision to reopen the criminal investigation and that is \nthe statement that she put out on the 29th of September.  \nThen there is another document here it says, \nGovernor Kathy Hochul says video, audio, photos and rush \ntranscript.  Governor Hochul and Attorney General James to \nprovide an update on Cornell sexual assault investigation.  \nI have a question about that because it appears there was a \njoint press conference and this is a copy of the Governor's \nstatement and then she turned it over to the Attorney \nGeneral.  Did she stand next to the Governor, did the \nAttorney General stand next to the governor at this \nparticular October 2nd press situation when the Governor \nrepeated similar statements that the Attorney General had \nmade in the tweet?  \nMS. VIGARS:  Your Honor, I believe it was a joint \npress conference.  But ultimately-- \nTHE COURT:  And she'd had been appointed at that \npoint, no?  \nMS. VIGARS:  I'm sorry.  I'm having trouble \nfollowing the question.\nTHE COURT:  The Attorney General had been appointed \nas the special prosecutor at that point; correct?  \nMS. VIGARS:  I'm not aware. \nTHE COURT:  It was October 2nd. \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 33 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n32\nMS. VIGARS:  Then yes, the Attorney General was \nappointed on October 1st and if you are telling me the \ndate -- \nTHE COURT:  The night before.  This is what it \nsays.  It says, this is the Governor, \"Good morning last \nnight I signed an executive ordered appointing Attorney \nGeneral Letitia James as special prosecutor et cetera et \ncetera.  Then she said \"this women, this young woman had \nalready endured something that is utterly unspeakable and \nthat at every turn she was failed by the people and \ninstitutions with obligation to protect her.\"  She concluded \nby saying \"but at the heart of all this is one young women \nand what she deserved from the beginning.  Every parent who \nsends their child off to college expects them to be safe and \nif something terrible happens the student deserves to know \nthat the people they turn to will listen to them, protect \nthem and fight for them.  That is the bear minimum.  This \nbrave young woman deserved that in 2024 and she deserves it \nnow.  And I'm going to use every part of my power to do \neverything I possibly can to make sure she finally gets it.\"  \nThen she says, \"with that I turn over to Attorney General \nLetitia James.\"  So was she standing next to the Governor \nwhen the Governor made those remarks?  \nMS. VIGARS:  If that is what you are reading from, \nit was a joint press conference then, yes.  But, ultimately \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 34 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n33\nI think what we are getting into here is an ultimate \ndisagreement with the Governor's choice. \nTHE COURT:  I just want to know if she was standing \nnext to her when the Governor made those statements and then \nintroduced her as special prosecutor. \nMS. VIGARS:  I mean it was a joint press conference \nso to answer Your Honor's question, yes. \nTHE COURT:  Thank you. \nMS. VIGARS:  With respect to the merits of \nPetitioner's claim -- \nTHE COURT:  Does that run a foul of the \nprofessional rule of conduct?  \nMS. VIGARS:  Ultimately, I think we are getting a \nlittle bit far field but. \nTHE COURT:  I'm just wondering if it might. \nMS. VIGARS:  I think at this point, there is \nnothing about the Attorney General's statement on social \nmedia, there is nothing here that would indicate that theres \nanything that is going to happen, there is no reason to \nbelieve that the investigation is not going to follow where \nthe facts lead it.  Ultimately the special prosecutor as a \nconstitutional officer, as a elected officer, she has-- \nthere are all sorts of obligations that she has that would \nrequire her to follow the facts -- \nTHE COURT:  Wasn't her statement purpose of \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 35 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n34\nappointing the Attorney General to avoid conflicts, to avoid \nbias to have objective and now you got this situation where \nyour appointed attorney who has made statements that where, \nI guess from what I can see, viewed by almost 700,000 \npeople.  626,000 people, based on exhibit four.  Is that a \nproblem?  \nMS. VIGARS:  Well, Your Honor, in order to warrant \ndisqualification there has to be actual prejudice. \nTHE COURT:  Are there any cases, can either side \ncite me any cases where a prosecutor has made a public \nstatement either through social media or otherwise that has \nengendered this type of response?  \nMS. VIGARS:  There are multiple cases cited in or \nbrief.  The NRA case for example, the Trump case.  All of \nwhich involve public statements by a prosecutor which in \nthose cases did not present an impediment to prosecution. \nTHE COURT:  You agree with me, it's probably not a \ngood idea for a prosecutor to engage in that type of \nconduct?  \nMS. VIGARS:  Well that is not the question that \nneeds to be resolved by this Court. \nTHE COURT:  You wouldn't agree with me? \nMS. VIGARS:  It's not proper for this Court to \ndecide whether or not they agree with this statement.  The \nquestion before the Court is ultimately if notwithstanding \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 36 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n35\nall the procedural barriers it requires disqualification-- \nTHE COURT:  I'm asking whether a prosecutor should \nmake those types of statements. \nMS. VIGARS:  I'm hearing Your Honor's disagreement \nwith the sentiment of the statement that is coming across. \nTHE COURT:  No, I'm asking you whether you think \nit's appropriate for a prosecutor to make that statement. \nMS. VIGARS:  Ultimately I don't think public \nstatements by a prosecutor are an impediment to prosecution.  \nAt the end of the day, the obligation that the prosecutor \nhas is as duty of fair dealing to the accused.  There is \nnothing that prevents a prosecutor from making public \nstatements.  There are numerous cases-- \nTHE COURT:  There is a ethical rule. \nMS. VIGARS:  --there are a number of cases cited in \nour brief that go to public statements made by a prosecutor.  \nWhere those public statements were not an impediment to \nprosecution.  Even in matter of Schumer, those were public \nstatements that were made by the prosecutor and even there \nthe Court of Appeals found it was not proper to reach the \ndisqualification issue. \nTHE COURT:  What were the statements at issue with \nSchumer?  \nMS. VIGARS:  Concerns about the propriety, about \nthe propriety of engaging in the investigation, about their \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 37 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n36\npolitical differences.  There had been a contentious \nelection and there was some back and forth I believe in the \nmedia and in the press about it and even then, the court \nfound that disqualification was not appropriate and actually \nin that case rested on the disqualification issue turned on \njusticiability considerations.  \nSo ultimately to Your Honor, we reached the \ndisqualification issue but before you reach the \ndisqualification issue, you also have to resolve a few other \nprocedural hurdles such as whether the writ of prohibition \nlies and whether it's discretion, it's issuance is \nwarranted.  Ultimately the writ of prohibition here does not \nlie because these are executive actions.  The writ of \nprohibition exists to constrain judicial and quasi-judicial \nactions.  \nThe Governor's appointment of the Attorney General \nhere was done in exercise of her constitutional authority as \nthe executive.  It's purely an executive action.  The writ \nof prohibition would not lie against that executive action.  \nAdditionally, the Attorney General's exercise of \nthe authority given to her by the Governor is likewise an \nexecutive action.  The writ of prohibition does not lie to \nconstrain either of those actions. \nTHE COURT:  Do you think if any of these \nindividuals are prosecuted and ultimately convicted of any \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 38 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n37\noffenses involving this, this potentially could be an \nAppellate issue?  \nMS. VIGARS:  Yes and that gets into the point of \nthe discretionary factors that this Court would have to \nconsider.  If the writ of prohibition lies, whether or not \nit should issue, is a matter left to your discretion.  One \nof the factors, as to one of the discretionary factors, is \nthat adequacy of alternative remedies.  So, here ultimately \nif this ripens into a criminal prosecution, criminal \ndefendant would have the opportunity to make a post-- excuse \nme, a pretrial motion where they can raise these claims, \nthey can raise them again on direct appeal, they can raise \nthem post-conviction motions, they can raise them in other \ncollateral proceedings which is writ of habeas corpus.  \nThere are a number of other mechanisms for the Petitioner to \nraise these claims.  Additionally the unique--\nTHE COURT:  Couldn't they raise the claim before \nthe judge if there is an indictment and the court will issue \nan indictment -- \nMS. VIGARS:  Correct they can move to dismiss the \nindictment.  What is unique and I think important about \nthese alternative remedies that makes them particularly \nadequate is that at that point they'd be made on a full \nrecord.  At this point, we are speculating based on these \nstatements, what might happen.  But ultimately if there is \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 39 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n38\nan indictment and if this does move forward we have a full \nrecord.  We see how the investigation has born out, we see \nhow the thing that Petitioner fears here materialized and \nthe Judge at that point, could review to say whether or not \nPetitioner is prejudice, whether the things he's concerned \nabout, he or other criminal defendants, whether the things \nthey are concerned about actually materialized to undermine \nthe right to a fair trial, to be an inappropriate \nindictment.  Any of those things.  Matter of Abelove which \nis cited in our papers, that is exactly what I think what \nthe Court found there is, there is plenty of adequate \nalternative remedies here and that would be a discretionary \nreason why the writ of prohibition should not issue.  I do \nwant to be mindful of my time.  I think I am over the 30 \nminutes.  \nTHE COURT:  No, you have four more minutes. \nMS. VIGARS:  Okay.  I think finally, Your Honor.  I \ndo just want to say there is an alternative claim for relief \nin the petition which asks whether the Governor's actions, \nwhich asks this Court to review the Governor's actions as \narbitrary, capricious and were in an abusive discretion.  \nThat standard doesn't apply to the Governor's discretionary \naction.  That is a black-letter law those cases are cited in \nour brief.  That would require denial of that alternative \ngrounds for relief.  So for all those reasons-- \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 40 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n39\n \n  \n \n \n \n \n \n  \n \n \n \n \n \n  \n \n   \n \n \n \n \n \n \n \n \n \n  \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n  \n \n  \n \n \n \n \n \n \n \n \n  \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n  \n \n  \n \n \n \n \n \n \n \n  \n \n \n \n \n \n \n \n \n  \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n  \n \n \n  \n \n \n \n \n \n \n  \n \n  \n \n \n \n  \n \n \n  \n \n \nTHE\n \nCOURT:\n \nDo\n \nany\n \nof\n \nthose\n \ncases\n \naddress\n \na\ncriminal\n \nproceeding\n \nor\n \nare\n \nthey\n \ndifferent?\nMS.\n \nVIGARS:\n \nI\n \nbelieve\n \nthey\n \nall\n \nare\n \nadministrative\nand\n \ncivil\n \nmatters.\nTHE\n \nCOURT:\n \nIsn't\n \nthis\n \nbecause\n \nof\n \nthe\n \npotential\ncriminal\n \nnature\n \nit's\n \nvery,\n \nvery\n \nserious\n \nconstitutional\n \ndue\nprocess\n \nissue\n \nthat\n \nare\n \ninvolved\n \nhere,\n \nwere\n \nnot\n \nat\n \nissue\n \nin\nthose\n \nother\n \ncases?\nMS.\n \nVIGARS:\n \nJust\n \nto\n \ntouch\n \non\n \nthe\n \nconversation\n \nwe\njust\n \nhad.\n \nThose\n \nsort\n \nof\n \nconstitutional\n \nand\n \nother\naffirmative\n \nrights\n \nof\n \nan\n \naccused\n \nthose\n \nare\n \nthings,\n \none\n \nthat\nare\n \nnot\n \nnecessarily\n \nimplicated\n \nhere\n \nwhere\n \nthere\n \nis\n \nno\ncriminal\n \nproceeding\n \nand\n \ntwo,\n \nthey\n \nare\n \nmore\n \nproperly\n \nraised\nin\n \na\n \ncontext\n \nof\n \na\n \ncriminal\n \nproceeding\n \nwhere\n \nthey\n \ncan\n \nbe\nresolved\n \non\n \na\n \nfull\n \nrecord\n \nand\n \nthrough\n \nthose\n \nother\n \nmore\nappropriate\n \nchannels.\nSo,\n \nfor\n \nall\n \nthose\n \nreason\n \nas\n \ndetailed\n \nin\n \nour\n \nanswer,\nwe\n \nwould\n \nrespectfully\n \nrequested\n \nthe\n \nrelief\n \nrequested\n \nin\n \nthe\nverified\n \npetition\n \nbe\n \ndenied\n \nand\n \nthat\n \nthe\n \nverified\n \npetition\nof\n \nthis\n \nproceeding\n \nbe\n \ndismissed\n \nin\n \nentirety\n \nand\n \nwith\nprejudice.\nTHE\n \nCOURT:\n \nThank\n \nyou.\nMR.\n \nBERNSTEIN:\n \nAny\n \nchance\n \nof\n \ntwo\n \nto\n \nthree\n \nminutes?\nTHE\n \nCOURT:\n \nOne\n \nminute.\nMR.\n \nBERNSTEIN:\n \nOne\n \nminute\n \nokay.\n \nIf\n \nYour\n \nHonor \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 41 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n40\nrespectfully will allow us a week, three days to maybe \nsubmit supplemental briefing on joinder.  I think it's \npermissive, if Your Honor will permit that.  I would ask for \nthat. \nTHE COURT:  I think it can be dismissed under \n30--1001A if I find they are not properly joined. \nMR. BERNSTEIN:  Right, I'm asking if we can submit \nsupplemental why it should not be dismissed. \nTHE COURT:  I have a problem with this joinder \nissue because I don't understand, if your argument is there \nall going to be substantial prejudice why they haven't all \neither appeared and why you didn't serve them and put them \ntogether.  Otherwise it's not a one defendant potential \ncase.  It's a potential for seven.  You can't have seven \ndifferent proceedings and if it's acting together in concert \ntheory, it's one indictment. \nMR. BERNSTEIN:  I think it's Mr. Lopes right to do \nthis as well without -- \nTHE COURT:  It's also my right to say you didn't \njoin the proper parties and therefore it's dismissed. \nMR. BERNSTEIN:  And that is why I'm asking for \nthree days to put in supplement briefing why we believe it's \nproper.  When we filed this Petition it is certainly \nsomething that was discussed and we believed it was proper \nunder the law.  Again, the State didn't raise it we didn't \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 42 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n41\naddress -- \nTHE COURT:  I have to look at all the law when I \nlook at something.  I don't just look at what the State \nresponds I look at everything.  And 7802 (d) tells me that \nthere is a joinder issue here.  1001-A tells me it can be \ndismissed on a issue of failure to join.  There is no \ndispute, you allege in page ten, at the bottom, you allege \nthat not only will your client be prejudice but so will the \nothers, that is what you say.  Well where are the others?  \nYou make a statement but I don't know if that is accurate.  \nI don't know that, they haven't joined, you didn't join \nthem.  \nBy the way, if we would assume that they probably \nshould join based on your argument and they don't want to, \nthen you serve them as a defendant.  That is what the law \nstates. \nMR. BERNSTEIN:  Your Honor, I understand 1001 says \nit can be but I'm saying I think it's permissive and why we \nthink it's not.  That's why I'm asking supplemental on the \nissue whether you can proceed which we believe you can \nwithout them. \nTHE COURT:  What is the Attorney General's position \non any additional briefing on the joinder issue.  You didn't \nraise it but I can raise it.\nMS. VIGARS:  Yes, we agree the Court can raise it \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 43 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n42\nat any point.  To your point Your Honor, CPLR 1001-A permits \nthe Court to raise the issue of necessary parties.  \nUltimately we would oppose. \nTHE COURT:  It also gives me the authority to grant \nthem leave to serve. \nMS. VIGARS:  Yes, it does.  The option is yours \nespecially now here where the statute of limitations has not \nrun.  We would oppose that, Your Honor.  As this has been \nplaced on expedited schedule as indicated in my \ncorrespondence to the Court.  We have prepared our papers \nwith that expedited schedule in mind.  We would oppose any \nrequests that would further prolong this proceeding. \nTHE COURT:  I'll give you one week to get a joinder \napplication in. That's it. \nMR. BERNSTEIN:  A joinder application.\nTHE COURT:  Yes or submission on the issue of \njoinder.  I think you have real issues with the joinder.  It \nwasn't raised by the Attorney General.  I'll give you time \nto submit it to me, One week.\nMR. BERNSTEIN:  Thank you, Your Honor. \nTHE COURT:  By November 5th submission on that. \nMS. VIGARS:  Are you going to give the Respondents \nany time to respond?  \nTHE COURT:  I have to see what they are going to \nsay about it.  If they continue to say there is no issue of \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 44 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n43\njoinder, I'll consider that.  You didn't raise it but I'll \nconsider that.  If they wish to join, I'll give you a chance \nto respond. \nMS. VIGARS:  Thank you.\nMR. BERNSTEIN:  Thank you.\nTHE COURT:  Thank you, counsel.  Have a good day.\n(Whereupon, the proceedings were concluded.\n                   **\nCertified to be a true and accurate transcript of my \nstenographic notes.\n_____________________________________\nNICOLE DUBATOWKA\nCourt Reporter\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026","text":"--- Page 1 ---\nExhibit 1 \n \n \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 2 ---\n1\nSUPREME COURT OF THE STATE OF NEW YORK\nCOUNTY OF ALBANY\n---------------------------------------------------------------X\nIn the matter of the application of\nGILLIO LOPES, \n \nPetitioner,\nFOR A JUDGEMENT PURSUANT TO\nARTICLE 78 AND SECTION 3001 OF\nTHE CPLR\n-against-\nIndex No.\n911974-26\nKATHY HOCHUL, 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,\nRespondents.\n---------------------------------------------------------------X\nARTICLE 78 Hearing\nLawrence H. Cooke\nSullivan Supreme & County Court\n     414 Broadway\nMonticello, New York 12701\nOctober 29, 2026\nB E F O R E:  HONORABLE JAMES FARRELL\n Acting Justice of the Supreme Court\nA P P E A R A N C E S:\nNESENOFF & MILTENBERG LLP\nAttorneys for the Petitioner\n363 Seventh Avenue, 5th Floor\nNew York, New York 10001\nBY: STUART BERNSTEIN, ESQ.  \n    ANDREW MILTENBERG, ESQ.\nLETITIA JAMES\nSTATE OF NEW YORK ATTORNEY GENERAL\nAttorneys for the Respondents\nThe Capital\nAlbany, New York 12224\nBY: KAITLIN VIGARS, ESQ.\n    JOHN MOORE, ESQ.\n________________________________________________________________\nNICOLE DUBATOWKA\nCourt Reporter\n \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 3 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n2\nTHE COURT CLERK:  Case one on the calendar Gillio \nLopes vs. Kathleen Hochul and Letitia James.  Index number \n911974-26 on for hearing.  Appearances for the record \nplease. \nMR. BERNSTEIN:  Stuart Bernstein for Mr. Lopes. \nMR. MILTENBERG:  Andrew Miltenberg, Nesenoff and \nMiltenberg with Mr. Bernstein, Judge.  \nMS. VIGARS:  Assistant Attorney General Kaitlin \nVigars here with my colleague, Assistant Attorney General \nJohn Moore from the Office of the New York State Attorney \nGeneral for Respondents Kathy Hochul, Governor of the State \nof New York and Letitia James, New York State Attorney \nGeneral.\nTHE COURT:  Thank you, welcome counsel.  I'll hear \nfrom the Petitioner.  30 minutes. \nMR. BERNSTEIN:  Stand, sit?  \nTHE COURT:  Stand please.\nMR. BERNSTEIN:  Thank you.  Good afternoon, Your \nHonor, counsel.  My name is Stuart Bernstein, my partner \nAndrew Miltenberg, we represent the Petitioner, Gillio Lopes \nin this case.  I am in my 37th year of practicing law, Your \nHonor and the first eight as an assistant district attorney \nin New York County under the Honorable Robert M. Morgenthau \nand the office of special narcotics prosecutor.  There was \nno greater honor than to be to standing before a jury and \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 4 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n3\ndoing opening statements and saying I represent the People \nof the State of New York.  That statement meant, all of the \npeople.  Criminal defense attorneys, they have one client \nbut as I know, Your Honor is aware, district attorneys and \nassistant district attorneys represent all of the citizens \nof their counties that they represent and in this case \nAttorney General James, represents all of the citizens of \nNew York State.  She is supposed to represent all of them \nand as we will discuss throughout the afternoon, \nunfortunately she has failed that obligation from the \nget-go.  \nAs the Court of Appeals explained in People v. \nSantorelli, prosecutors have special responsibilities to \nsafeguard the integrity of the criminal proceedings and \nfairness of the criminal process.  Those responsibilities \nrequire a prosecutor to test competing accounts, consider \nconjure evidence and change course when the evidence \nwarrants.  \nThat obligation is the backbone and foundation of \nour petition.  The standard we ask this Court to apply would \nbe the same regardless of who the prosecutor was, the \npolitical affiliations, the identity.  It would have \nabsolutely nothing to do with that.  The only party that \nrespectfully brought political issue into this case, is the \nState.  The State keeps answering questions challenging that \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 5 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n4\nwe are not asking.  We are not challenging the Governor's \nauthority to supersede the Tompkins County District \nAttorney.  I will say that now Your Honor, and I will say it \nprobably a lot of times throughout this afternoon.  We are \nnot asking this Court to supervise an investigation.  We are \nsimply asking Your Honor, based on the facts of this case, \nthat whether the official chosen by the Governor to carry \nout the Governor's vision to restore confidence in a \nobjective independent investigation is and was qualified to \ndo so.  \nIt is our opinion and what our papers support, is \nthat Attorney General James is not that person and is not \nqualified in this specific case, again I want to be very \nclear, Your Honor, we are talking about this specific case.  \nAnd based on Attorney General James' statement on September \n28th that we will get into where she publicly aligned \nherself with a complainant in a civil and criminal manner \nthat, that appointed is no longer a viable appointment.  \nRespectfully, Your Honor, that is the question \nbefore you.  We submit that this case appears to be a case \nof first impression.  There's a lot of cases cited by both \nsides, maybe six to ten important cases.  None of them bear \non these cases.  It's more like a jigsaw puzzle, your Honor \nwhere we take rationals and holdings from different cases \nand come to here, and come to this case.  What happened in \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 6 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n5\nthis case, Your Honor is a perfect storm and I will go \nthrough that very shortly.  \nThe Petitioner is seeking only again, we are not \nlooking for a wide sweeping referendum here, Your Honor.  \nThis is a very specific request, that Your Honor disqualify \nand invalidate Executive Order 64 appointing Attorney \nGeneral James as a special prosecutor in this case and send \nit back to the Governor.  Not asking you to step in and to \nrun the investigation, not asking you step in and pick \nsomeone.  Again, we are not saying and we are not asking you \nto say that the Governor, it's really important, we are not \nasking you to say, the Governor does not have the right to \nsupersede.  We are just saying that the qualifications of \nthe person she selected are not legally sufficient and we \nbelieve the case law allows you, Your Honor, to make that \ndetermination.  \nTurning to the facts of this case.  On Monday \nSeptember 28th at approximately 6:13 p.m. Attorney General \nJames on the official Attorney General X account issued a \npost and Your Honor that is exhibit six in our moving papers \nand I believe, exhibit A in the States--  the State didn't \ninclude it.  It's exhibit six in our papers. \nTHE COURT:  The State did not include it.   \nMR. BERNSTEIN:  I don't believe the State included \nAG James' post as an exhibit.  The only exhibit I believe \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 7 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n6\nthey have is Exhibit A, Executive Order 64, which is exhibit \nsix in our papers.  \nAttorney General James at 6:15 on September 28th \nwrites, \"what this young woman has been forced to endure is \nhorrific and unacceptable.  I'm holding her in my heart and \nin my prayers.  To her and to all survivors: You're not \nalone.  We stand with you.\"  \nYour Honor, that and we'll talk about it and I'm \nsure the State will talk about it.  That is not a empathetic \nstatement.  They claim that Attorney General James made an \nempathetic statement.  That is not an empathetic statement, \nYour Honor.  This is a very specific statement and if you \nlook at three specific parts here, what this young woman has \nforced to endure.  So that Your Honor, Attorney General \nJames, has now accepted what has allegedly happened, has \nhappened.  That is a foregone conclusion.  What this young \nwoman has been forced to endure is horrific.  I'm holding \nher, so now Attorney General James is now making it \npersonal.  It's not a generalization that all crime is bad \nor sexual assault is bad and that would potentially be an \nempathetic statement that someone would make, this is not.  \nThis is a very, very specific, I'm holding her in my heart \nand in my prayers.  To her, again the next line, to her, a \nvery specific not a generalized statement.  To her and to \nall survivors.  Respectfully, Your Honor if you look in the \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 8 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n7\ndictionary, the word survivor means something has happened \nto someone.  So the Attorney General has clearly made a \ndecision that something horrific has happened to this young \nwoman.  \nShe's the Attorney General of the State of New \nYork.  The highest ranking law enforcement official in this \nstate.  She should not be making those statements.  \nRespectfully, I think it violates several mechanics of \nethics.  As the sitting Attorney General for the State, she \nhas made a decision, she has made a determination.  Your \nHonor, also absent from the State's papers is a declaration \nfrom Attorney General James explaining it.  It wasn't \nimportant enough or she couldn't explain it.  All their \npapers say, it was an empathy statement, that is written by \ncounsel but nothing from Attorney General James herself or \nthe Governor explaining their actions.  I guess they don't \nthink they have to, that is up to them, Your Honor.  I'm \njust saying, there is no declaration from Attorney General \nJames explaining this statement.  \nI think what is lost in this media coverage, Your \nHonor, obviously it's covered.  I think what gets lost a \nlittle is what happens the next day.  September 29th, Your \nHonor, Governor Hochul issued a press release and that is \nexhibit four in our papers.  \nAnd the second paragraph of Governor Hochul's press \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 9 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n8\nrelease on September 29th states, \"I support the district \nattorney's decision to reopen the criminal investigation.\" \nTHE COURT:  That was before the appointment of the \nAttorney General?  \nMR. BERNSTEIN:  Exactly.  So on the 28th AG James \nmakes that statement.  On the 29th, Governor Hochul is \nsupporting District Attorney Van Houten for him reopening \nthe investigation and then on October 1st comes the \nsuperseding appointment of Attorney General James.  We don't \nhave anything that happened in between.  We have a public \nstatement from the governor supporting District Attorney Van \nHouten. \nTHE COURT:  He made a statement that he was going \nto reopen it, yes?  \nMR. BERNSTEIN:  Correct and the Governor supported \nit on the 29th.  Now we go to the 1st, where we have \nExecutive Order 64 which is exhibit five in our papers and I \nbelieve exhibit A in the State's papers.  Your Honor, we \nlook at it, there are one, two, three, there are five \nwhereas causes.  And the first whereas cause states, Article \nfour section three of the Constitution of the State of New \nYork obligates the Governor to take care that the laws are \nfaithfully executed.  \nWe'll come back to the word faithfully shortly.  \nBut that is the first wherefore clause.  Wherefore clause \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 10 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n9\nnumber four, \"whereas concerns have been raised both by Jane \nDoe and the public that this incident cannot be fully and \nthoroughly investigated or prosecuted without conflict or \nbias or that the public perception of conflict of bias.\"  \nThe public conception--perception of conflict of bias.  The \nlast whereas clause, \"whereas the criminal justice process \nmust be guided by the facts of the law and the public \ninterest requires an objective review.\"  \nYour Honor, I'm not trying be funny, I'm not trying \nto be flippant or sarcastic.  When you look at the \nGovernor's Executive Order and you look at Attorney General \nJames' post, it really looks, it could be argued that the \nGovernor is writing about the post of Letitia James.  She \nhas shown that she is not objective, she has shown she is \nbias and the Governor's specific Executive Order writes, \n\"the public interest requires, so she talks about the public \nbut more importantly above it writes, \"Jane Doe in the \npublic that the incident cannot be fully and thoroughly \ninvestigated, prosecuted without conflict of bias.\"  Your \nHonor, if you look at exhibit six our copy of AG James' post \nand it just jumped out at me, there are posts after people, \nyou I guess how that works, you can like something and not \nlike something.  If you look at the first two post that are \non this page and we just submitted the first two posts here.  \nThere is a gentleman Ryan he says, \"so much for the \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 11 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n10\npresumption of innocence, LOL.\"  The next one by a person \nnamed Lori says, \"you should be removed from service.\"  Now, \nthat's the public, that's the public's initial reaction to \nAG James' post.  When I said I wasn't joking, Your Honor \nthat specifically is what Governor Hochul was looking to \nchange.  There was apparently some perception having to do \nwith the Tompkins County DA's office and the society and \npublic lost faith in him.  \nRespectfully, the public has lost faith immediately \nwith Attorney General James on the 28th.  She has shown no \npresumption of innocence, she has shown that she has picked \nsides.  So, the question before Your Honor, respectfully is, \nis she qualified as the special prosecutor in this case.  \nNot does Governor Hochul have the right to supersede and \nthat is an important distinction because the government, the \nState, in their papers continue to argue executive \nprivilege, they continue to argue the Governor has the power \nto supersede.  Again, for the umpteenth time, we are not \narguing that.  And it is clear from the post that Attorney \nGeneral James has accepted the facts as she had heard them.  \nWhether she heard them on the news or however she had heard \nthem on September 28th she accepted them.  \nBy saying, clearly and unambiguously, what this \nyoung woman has been forced to endure is horrific.  She has \naccepted that what she said happened, has happened.  How \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 12 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n11\ndoes that play into the this case, Your Honor.  \nOur papers, the State put in papers, we put in lots \nof moving, and then our reply which addresses all their \narguments.  I will answer any and all your questions, Your \nHonor and I will try to address all of them.  \nThose statements make this a ripe case right now.  \nWe can discuss that and I will discuss that in a little bit.  \nBut, right now going back to the Governor's discretion of \nauthority.  Again, we are not here saying, we want DA Van \nHouten back that is not why we are here.  DA Van Houten is \nnot here saying I want to be back on.  That would be \nchallenging Governor Hochul's authority.  Just like we saw \nwith regards to Johnson V. Pataki where the Court of Appeals \nwould not step in and say Governor Pataki didn't have the \nright to replace DA Johnson when he basically came out and \nsaid, long before that I will never seek the death penalty \nand Governor Pataki took all potential death penalty case \naway from him.  The Court of Appeals said you can't-- we are \nnot going to substitute the Governor's mindset, thinking and \nthat is what the State says here, you can't do what we are \nasking you to do because we are looking to supersede the \nGovernor's mindset.  We're not.  We're not saying the \nGovernor can't, and in the State of New York, Your Honor, I \nfind it hard to believe that there is not a single unbiased \nformer federal prosecutor, former attorney that can step in \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 13 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n12\nand be a special prosecutor.  In fact, we invite that.  Mr. \nLopes-- \nTHE COURT:  Let me ask you a question about that.\nMR. BERNSTEIN:  Sure.\nTHE COURT:  I got to hone in a little bit on your \nvenue.  I'm a little bit concerned number one, about \njoinder.  So, let me ask you this question.  Tompkins County \nis the Third Judicial District.  I'm sorry, is not in the \nthird, it's in the fourth.  Is this case number one, \nproperly venued?  That is my first question and number two, \nare there other litigants, are they joined.  The alligation \nhere is of a multi-potential suspect case.  Is it not just \nyour client, right?  There is six other people.  They're not \npart of this litigation, why?  \nMR. BERNSTEIN:  So -- \nTHE COURT:  And if I agree with you, say I agree \nwith you for the moment and she should be removed.  Does she \nget removed for your client's case and the other six have \nher as special prosecutor, how does that work?  Multiple \nprosecutors for different defendants?  \nMR. BERNSTEIN:  Your Honor in regards to venue-- \nTHE COURT:  Answer that question first. \nMR. BERNSTEIN:  Sure.  Your Honor, why the other \nsix have not joined I just don't know that answer.  I don't \nbelieve it is materially necessarily here they can joinder.  \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 14 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n13\nThey could always be brought in. The State didn't bring them \nin their papers.  \nTHE COURT:  Why didn't you bring them.  I know the \nState didn't but the Court has to be mindful of piecemeal \nlitigation and they may want the Attorney General to stay on \nthe case, I don't know they haven't appeared.  Although, on \npage ten of your affirmation you indicate that they would \nalso be prejudice but they are not saying that. \nMR. BERNSTEIN:  Your Honor, I think that they would \nreap the benefits of our work and we came-- they at no point \nas much as I hear you saying is that if they want the \nAttorney General they never moved to join.  They never \nmoved-- \nTHE COURT:  You never also served them.  You never \njoined them yourself. \nMR. BERNSTEIN:  Honestly Your Honor, I don't know \nwho they are.  I don't know their attorneys, I don't know \nanything.  We do know there is another proceeding in the In \nre grand jury in Tompkins County. \nTHE COURT:  I'll ask about that.  What about that, \nwhat is the status of that?  \nMR. BERNSTEIN:  Your Honor, I have no idea.  There \nis no public filing on that in criminal court. \nTHE COURT:  What if I agree with you and that judge \nover there disagrees with me and now we have two different \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 15 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n14\ndecisions or I disagree with you and they agree with your \nposition.  What happens then?  \nMR. BERNSTEIN:  Your Honor, what happens then is I \nbelieve that your Article 78 -- \nTHE COURT:  I'm not the Appellate Court. \nMR. BERNSTEIN:  Your decision on the Article 78 \nPetition Your Honor, is the one that would be control.\nTHE COURT:  I'm a court of court of jurisdiction \nwith a superior court Judge of Tompkins County over the \ngrand jury.  We are equal. \nMR. BERNSTEIN:  Judge, I have no knowledge of the \ngrand jury being impanelled in Tompkins County. \nTHE COURT:  You just said that there is litigation \nthere In re Tomkins County grand Jury.  I assume that goes \nto the grand jury judge. \nMR. BERNSTEIN:  I saw a filing.  I see no papers by \nanyone opposing it by the state, there has been no filing, \nthere is no nothing, there is no caption, no index number.  \nThere is no mechanism for that to even have a case to be \nviable.  I don't know what counsel has done in that case, \nMr. Lee's counsel, I know it is Mr. Lee.  In terms of here, \njoinder Your Honor, going back to the argument here.  No one \nhas put in that they oppose it.  No one has come in, the \nState hasn't opposed it. \nTHE COURT:  I don't even know--you said you don't \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 16 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n15\neven know who these folks are.  I don't know if they know \nabout it.  Maybe they don't know about it, is that possible?  \nMR. BERNSTEIN:  Respectfully, Your Honor, anything \nis possible.  I know there is a civil matter.  In terms of \nthis process is it possible they don't know about it, I \nwould find it hard to believe with the amount of press that \nthis is covered.  I'd be very, very shocked if they didn't \nknow about it.  In terms of the joinder statute itself, Your \nHonor, I believe Your Honor can order us to serve, to \nattempt to serve, if we brought them in.  I don't believe \nthat is a linchpin for potential denial of this case.  Your \nHonor, is it possible Mr. Miltenberg address something as \nwell.  \nTHE COURT:  He may.  I need an answer to that.  You \ncan't have one court ruling in one direction and another \ncourt ruling in another direction and there be uncertainty.  \nThat is not fair, that is not fair to anyone. \nMR. MILTENBERG:  I would submit to you that this \nquestion of whether the Attorney General in this case has \nmade a predetermination or predisposition is not \nparticularly litigable by any single defendant in the civil \ncase.  It's is a question sort of, it's a foundation \nquestion as to this litigation.  It's a determination that I \nthink has to be made whether it affects one person, five of \nthe seven, three of seven, seven of the seven, whatever the \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 17 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n16\ncase may be.  \nEither this Court determines that the statements \nmade by Attorney General James take her out of contention to \nbe a neutral party objectively reviewing this case or the \nCourt determines that it's okay for her to continue.  \nIt's not particularly owned, this issued isn't \nowned by any one defendant.  This is, as far as we are \nconcerned how we see it, a statewide issue.  This is an \noriginal sin if you will, for this particular case and there \nis no, as far as we are concerned, other competing pending \nlitigation on this particular issue but this -- \nTHE COURT:  There is what your co-counsel indicated \nwas application before the grand jury Judge in Tompkins \nCounty. \nMR. MILTENBERG:  There is but I don't think that \nspecifically addresses this foundational issue. \nTHE COURT:  Couldn't you bring this up if your \nclient was eventually charged?  Could you ask for her to be \nremoved?  \nMR. MILTENBERG:  I think at that point, considering \nthe fact that the role of special investigator/ prosecutor \nis to commence the review with a clean slate. \nTHE COURT:  But the facts don't change, do they?  \nMR. MILTENBERG:  Well, exactly that is part of the \nconcern here.  Is not only did the facts not change but the \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 18 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n17\nacceptance by the Attorney General of facts central, facts \nthat are foundation to Jane Doe's claims is not going to \nchange.  We need, the State needs, the people need.  I want \nto think about how we got here.  We got here today because \npeople were not satisfied with the investigation done by \nCornell and the results of that.  We are here because people \nwere not satisfied with the Tompkins County District \nAttorney's approach with this.  \nWhy do we need to put the People of the State in \nthe position of again, lacking confidence in result because \nof an apparent predetermination of appearance whether or not \nAttorney General James is bias, in this particular case we \nargue that she is, the appearance of an impropriety, a \npredetermination we believe is enough.  \nThis is a question that has to be answered \nregardless of who brings it up and we submit that should be \nthe focus of what this Court looks at. \nMR. BERNSTEIN:  Your Honor, if I can piggyback on \nthe question regarding is it premature and can it wait until \nafter.  I think the Court of Appeals in Fisher addresses \nthat, it says, \"it's not in the publics interest to allow a \nprosecutor to carry out a lengthy investigation when there \nis doubt.\"  Which respectfully Your Honor, we have submitted \na lot of doubt that keeping her appointed is valid.  \"And to \nrun the risk that the process will have to start over again \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 19 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n18\nwith a different prosecutor.\"  It just makes no sense and \nthe Court of Appeals allowed for an inquiry as to \nappointment of the prosecutor at the early stages not having \nto wait to it.  Along that same line Your Honor, our client \nis identified, the Governor has basically identified him in \nterms of being in the scope of the investigation.  It's not \nspeculative, Your Honor.  The Governor in her Executive \nOrder, in the second wherefore clause identifies the \nspecific lawsuit, the State in their answer admitted that \nMr. Lopes falls within the scope of Attorney General's \npotential investigation, that he is an identified person.  \nSo, he clearly, it's not speculative, Your Honor \nhe's named in the Attorney General investigation which \nincludes what Mr. Miltenberg was saying Your Honor, the \ninvestigation begins with and you know this better than \nanyone, a prosecutor with the set ideas in their head of \nwhere this investigation is going to go.  A creditability \nassessment, what witnesses, all of these are \npre-investigated decisions.  Respectfully, Attorney General \nJames has already made, has already made in a favor of Jane \nDoe and against the alleged potential perpetrators.  How, \nand Your Honor, again, she, Attorney General James, is \nsuppose to represent all of the people having read that \nstatement, how is Mr. Lopes and the other potential people \nthat could face criminal prosecution, how are they supposed \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 20 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n19\nto feel as a citizen.  How are they suppose to feel that the \nperson that is in charge of this investigation has already \npredetermined it.  \nThey are entitled to a right of a fair and unbiased \ninvestigation which Attorney General James through her \nstatement made clear will not happen.  The Court of Appeals \nin Fisher says, we don't have to wait until the end.  \nRespectfully, that is where we are.  Your Honor, I think \nthere was a unanswered question with regards to venue. \nTHE COURT:  I understand why the venue is in Albany \nCounty, I understand that.  She is the Attorney General of \nthe State of New York.  You could have venued it to Tompkins \ncouldn't you?  \nMR. BERNSTEIN:  Respectfully, if we move a Article \n78, I don't think we can Your Honor.  Article 78, according \nto my understanding of the CPLR and the law has to be where \nthe action took place and Governor Hochul's Executive Order \n64 took place in Albany.  That is where the seal and \neverything is, it took place in Albany.  The action of the \nExecutive 64 which we are contesting, we are not contesting \nthe statement of Attorney General James, we are contesting \nthe appointment of Attorney General James and that occurred \nin Albany County.  Could venue come in different places, \nYour Honor, I think that is also possible you could have \nvenue in different statutes.  I think clearly and \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 21 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n20\nrespectfully that venue is appropriate here in Albany County \nbased on Executive Order 64. \nTHE COURT:  Okay, anything further?  You have one \nminute left. \nMR. MILTENBERG:  I submit, Your Honor this is too \nimportant of a question to exalt formal resubstance \nreviewing with -- \nTHE COURT:  It's not formal resubstance if you have \nmultiple courts coming down with different decisions.  You \nhave chaos. \nMR. MILTENBERG:  I agree with you.  Nonetheless, \nthis is the original question that must be answered. \nTHE COURT:  And the court system should not \nengender or support any fashion chaos, we should be the \nantithesis of that. \nMR. MILTENBERG:  Certainly. \nTHE COURT:  Thank you. \nMR. BERNSTEIN:  Lastly again, I think joinder is \npermissible.  If you are inclined to decline the petition I \nask Your Honor, that it be done without prejudice. \nTHE COURT:  Thank you.  Who is arguing on behalf of \nthe attorney general and the government?  \nMS. VIGARS:  Yes, Assistant Attorney General \nKaitlin Vigars.  Good afternoon, Your Honor.  Just initially \non the procedural question you just raised with Petitioner's \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 22 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n21\ncounsel.  I do want to stress that, County Law Section 701 \nsubdivision 6 does provide for a specific process for \nhanding disqualification of the Attorney General that would \nrequire to Your Honor's point, the matter to be venued in \nthe county where the criminal matter is triable.  \nTo Your Honor's point and this is addressed in our \npapers, we do think that process attempts to elevate some of \nthe organizational concerns that you just raised. \nTHE COURT:  You didn't raise that specific issue \nthough. \nMS. VIGARS:  Well we raised -- \nTHE COURT:  You didn't raise the issue of multiple \ncourts hearing multiple applications.  Nor the fact that the \nsix others were not joined or ought to be joined or should \nbe joined or could affect something that involved their \nrights.  I know what the Petitioner's argued but you didn't \nargue that in your papers, did you?  \nMS. VIGARS:  We did not.  But we did argue about \nCounty Law Section 701 subdivision 6 in our papers.  I \npointed out here, just because I do think it answers your \nquestions about concerns about chaos and organizing and \nmarshalling the process.  I do also want to highlight a \nnumber of other procedural concerns that are dispositive \nhere.  \nAs indicated in our papers, there are several \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 23 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n22\njusticiability issues that prevent this Court from reaching \nthe merits of Petitioner's claim here.  Justiciability is \nimportant threshold consideration that goes to the very \npower of the court to adjudicate the dispute.  It \nencompasses a number of concepts as relevant here, ripeness, \nstanding and a political question doctrine.  \nFirst with respect to ripeness, the Petitioner must \nestablish that judicial review is both appropriate and that \nhe would suffer hardship if relief is denied.  Petitioner \nhere fails that second prong, the issue of the hardship.  \nSpecifically, with respect to hardship to constitute \nhardship for purposes of ripeness, the harm alleged must be \nsufficiently direct immediate and felt in a concrete way.  \nThe harm can't be remote or contingent.  The harm alleged \nhere is essentially that the investigation will be \nimproperly conducted and that would potentially prejudice \nPetitioner in a future criminal proceeding but that harm \nrelies on several unknown future events, which we don't know \nif they are going to occur.  \nFor Petitioner to experience that harm, first he \nwould need to, the result of the investigation would need to \nimplicate him, the results of the investigation would need \nto implicate him in such a way that it supports presentation \nto the grand jury and ultimately the grand jury would need \nto vote to indict the petition.  \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 24 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n23\nSo, even if as Petitioner has claimed it's true \nthat the statement by the Attorney General, the very brief \nstatement on social media by the Attorney General, were to \nestablish that she was going to somehow act improperly here \nit wouldn't necessarily solve that third piece of whether or \nnot this ever will ripen into a criminal prosecution, \nwhether the grand jury will vote to indict.  \nI also want to note that Petitioner in his papers \nhas claimed a separate harm of prejudice in a separate civil \nproceeding.  That is raised improperly for the first time in \nhis reply.  Even it were properly before the Court again, it \nrests on number of assumptions about how the investigation \nwould be conducted and ultimately what the result of that \ninvestigation will be.\nTurning to the second justiciability issue \naddressed in our papers, is the issue of standing.  To \nestablish standing it is the Petitioner's burden to show \nthat he has suffered an injury-in-fact and that, that injury \nis within the zone of interest of the statute under which \nthe government has acted.  So for many, for actually all of \nthe same reasons that Petitioner's claim is not ripe his \ninjury-in-fact, is all not sufficiently concrete.  So to be \nan injury-in-fact the harm alleged by Petitioner has to be \nconcrete.  It can't be speculative or contingent or depend \non unknown future events and for the same reason his claim \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 25 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n24\nisn't ripe, it's not an injury in fact.  \nEven if this were a sufficient injury it's not an \ninjury within the zone of interest of Executive Law Section \n63 subdivision 2.  Executive Law Section 63 subdivision 2 \nexists as a statutory mechanism for the legislator to \napportion power throughout the executive branch.\nSo, under the New York State Constitution, there \nare constitutional officers that have law enforcement \nauthority.  That's the Governor, the Attorney General and \nthe District Attorney.  The constitution doesn't spell out \nwho possesses what authority or prosecutorial \nresponsibilities.  That is traditionally left to the \nlegislator to decide who is going to do what and Executive \nLaw Section 63 subdivision 2, is how the legislator has \nchosen to exercise it's authority to apportion law \nenforcement authority throughout the executive branch.  \nThe structural and functional interest served by \nExecutive Law Section 63 subdivision 2 don't bear any \nrelationship to the sort of individualized injury to someone \nthat presumes they might be eventually subject to a criminal \nprosecution.  It's really a power sharing statute that \ndoesn't necessarily or that does not have any relationship \nto the rights of an accused.\nTo the extent that the Petitioner is for the first \ntime in his reply, claiming that he is also asserting some \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 26 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n25\nsort of interest in fairness in the criminal process.  I do \nwant to stress again, there is no criminal proceedings at \nthis stage.  We are in a very early stages of an \ninvestigation.  If this does ripen into a criminal \nproceeding, the character of the government action would \nnecessarily change, which would change the standing \ncalculus.  Potentially if there were an indictment, now the \ngovernment is acting under the criminal procedure law which \nchanges the standing calculus in a material way.  \nThird, the political question doctrine is the third \njusticiability principle that bars Petitioner's claims here.  \nThe political question doctrine is a separation of powers \nprinciple.  It prohibits courts from reviewing the \ndiscretionary determinations of actions that are properly \ntasked to the executive and the legislative branch.  Here, \nthe Petitioner claims violates the political question \ndoctrine in three main ways.  \nFirst, with respect to the executive branch, \nPetitioner essentially is asking this Court to review how \nthe Governor has exercised her discretionary authority to \nsupersede the district attorney.  Though Petitioner here, is \nattempting to distinguish their claim.  Ultimately, I think \na lot of the argument that you heard and a lot of argument \nthat's in their papers goes ultimately at bottom to a \ndisagreement with her choice.  Ultimately, that is exactly \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 27 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n26\nthe sort of claim that is not reviewable by courts.  \nAdditionally, with respect to the executive branch \nessentially Petitioner is asking this Court based on his \nfears of how the Attorney General may exercise her \nprosecutorial discretion to restrain her from acting.  \nGenerally speaking, courts are prohibited from weighing in \non how a prosecutor exercises their prosecutorial \ndiscretion.  \nThird, the Petitioner here, the claim here, also \nasks this Court to improperly invade the province of the \nlegislative branch.  The legislative branch here has enacted \nExecutive Law Section 63 subdivision 2 to give the Governor \nauthority task the Attorney General to conduct \ninvestigations.  It doesn't include any standard for the \nGovernor to act and it doesn't require her to explain her \nchoice.  The only requirement is that she identify the \nsubject matter of the investigation and there is numerous \ncase law cited in our papers that all supports this point.  \nPetitioner's argument here today, is essentially \nasking this Court to graft on to Executive Law Section 63 \nsubdivision 2 an external qualification requirement.  That \nexternal qualification requirement, it doesn't exist in the \nstatutory language, it doesn't exist in the constitutional \nprovision under which the governor has acted.  It would \ncontravene the legislator's specific policy choice to \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 28 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n27\ncountenance that argument here.   \nI think this point is nicely illustrated in matter \nof Mulroy vs. Carey.  In that case, very much like \nPetitioners are asking this Court to do here, the \nPetitioners in that case, which included the District \nAttorney who had been displaced were essentially arguing \nthat the Governor's decision wasn't reasonable and that \nthere should be some sort of standard of review.\nThe fourth Department, in matter of Mulroy vs. \nCarey, which was eventually affirmed by the Court of Appeals \nspecifically held that this was a separation of power \nissues.  The legislator has very obviously made this choice \nand it's not for the courts to second guess or to graft on \nthese additional standards.  \nFinally too, I just want to again point to County \nLaw Section 701 Subdivision 6.  As I indicated at the \nbeginning of my remarks, the legislator has enumerated a \nspecific and exclusive process for handing disqualification \nof the Attorney General allowing Petitioner to utilize an \nalternative process again contravenes that legislative \nchoice.  \nFinally, just on the justiciability piece.  I do \njust want to note that matter of Schumer v. Holtzman I think \nnicely illustrates the justiciability issues that prevent \nthe court from acting here.  In that case the parties had \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 29 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n28\nspecifically waived justiciability. \nTHE COURT:  Can we go back for a moment to the case \nyou cited Mulroy.\nMS. VIGARS:  Yes.\nTHE COURT:  Didn't the Court of Appeals say no view \nis expressed whether in any or all circumstance the exercise \nof executive power supersede an elected DA would be beyond \njudicial review.  We are not talking about an elected DA \nhere.  Didn't it also say that?  \nMS. VIGARS:  Yes.  They did leave open that there \nwas a possibility of potentially a way for litigant to bring \nthis sort of claim.  Yes, I acknowledge that-- \nTHE COURT:  Didn't they in Johnson V. Pataki \naddress the merits of the claim that the Governor had \nappointed the Attorney General in an abusive discretion.  \nDid they in one paragraph and then submit it descends, \nDetone in their descend say, the majority address the \nmerits.  Why did they address the merits if it's \nunreviewable?  \nMS. VIGARS:  Your Honor, the reason they addressed \nthe merits.  This is not just specific to Johnson v. Pataki \nthere are a number of cases that indicate this.  Not \nwithstanding the fact that Executive Law Section 63 \nSubdivision 2 doesn't require a standard and it doesn't \nrequire the Governor to explain their choice.\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 30 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n29\nTHE COURT:  But she did. \nMS. VIGARS:  Some governors have done so \naffirmatively.  \nTHE COURT:  But she did explain her choice, right.  \nOr why she was doing it, right to avoid conflict, to avoid \nbias, to get an objective review.  These were words that \nwere used in the executive order. \nMS. VIGARS:  Yes those are the words that in the \nexecutive order.  Sorry, to your specific point, with \nrespect to Johnson, I believe the reason that the Court \naddressed the discretionary issue there is because in that \ncase Governor Pataki had specifically held himself out as \nmaking some sort of statement of necessity or explaining his \nchoice.  I think here the language of the executive order to \nyour point, though it does provide some explanation, is it \nnot the sort of explanation that was discussed and at issue \nin matter of Johnson v. Pataki.  \nTHE COURT:  Why then would the Court, Judge Kaye \nwrote that opinion.  Very, very smart Judge.  Why would she \nhad weighed it into that issue.  Maybe she got voted into by \nSmith or Detone.  I don't know because their descends were \npretty strong.  The majority in that particular case, did \naddress the merits, they did.  If it's non-reviewable then \nwhy would the Court even go through the trouble of even \naddressing it. \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 31 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n30\nMS. VIGARS:  Again, I think the Court of Appeals \nexplains that in the decision that they were addressing it \nbecause some governors have affirmatively gone beyond what \nthe statute requires and so they were addressing it there.  \nUltimately, Johnson v. Pataki it stands for the proposition \nthat the Governor's determination is incredibility broad \nhere and it's just not reviewable at the level of detail \nthat Petitioner, his claims indicate. \nTHE COURT:  Can I ask a couple of questions \nregarding the facts of this particular situation.  Did the \nGovernor know when she appointed the Attorney General, that \nthe Attorney General had made the social media post that is \nattached the Petitioner's papers, exhibit 4?  \nMS. VIGARS:  Yes, presumably giving the timing that \nthe statement was before the appointment, the Governor was \naware of the statement and notwithstanding the statement she \nnevertheless chose to exercise her discretion to appoint the \nAttorney General to this position. \nTHE COURT:  So she was aware of it and appointed \nthe Attorney General notwithstanding the contents of it, \nyes?  \nMS. VIGARS:  Yes. \nTHE COURT:  I have another question, it was raised \nsort of but not really.  I see here in exhibit four, which \nis a statement from the Governor and it was pointed out by \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 32 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n31\nPetitioner just a few moments ago.  That she supported the \ndecision to reopen the criminal investigation and that is \nthe statement that she put out on the 29th of September.  \nThen there is another document here it says, \nGovernor Kathy Hochul says video, audio, photos and rush \ntranscript.  Governor Hochul and Attorney General James to \nprovide an update on Cornell sexual assault investigation.  \nI have a question about that because it appears there was a \njoint press conference and this is a copy of the Governor's \nstatement and then she turned it over to the Attorney \nGeneral.  Did she stand next to the Governor, did the \nAttorney General stand next to the governor at this \nparticular October 2nd press situation when the Governor \nrepeated similar statements that the Attorney General had \nmade in the tweet?  \nMS. VIGARS:  Your Honor, I believe it was a joint \npress conference.  But ultimately-- \nTHE COURT:  And she'd had been appointed at that \npoint, no?  \nMS. VIGARS:  I'm sorry.  I'm having trouble \nfollowing the question.\nTHE COURT:  The Attorney General had been appointed \nas the special prosecutor at that point; correct?  \nMS. VIGARS:  I'm not aware. \nTHE COURT:  It was October 2nd. \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 33 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n32\nMS. VIGARS:  Then yes, the Attorney General was \nappointed on October 1st and if you are telling me the \ndate -- \nTHE COURT:  The night before.  This is what it \nsays.  It says, this is the Governor, \"Good morning last \nnight I signed an executive ordered appointing Attorney \nGeneral Letitia James as special prosecutor et cetera et \ncetera.  Then she said \"this women, this young woman had \nalready endured something that is utterly unspeakable and \nthat at every turn she was failed by the people and \ninstitutions with obligation to protect her.\"  She concluded \nby saying \"but at the heart of all this is one young women \nand what she deserved from the beginning.  Every parent who \nsends their child off to college expects them to be safe and \nif something terrible happens the student deserves to know \nthat the people they turn to will listen to them, protect \nthem and fight for them.  That is the bear minimum.  This \nbrave young woman deserved that in 2024 and she deserves it \nnow.  And I'm going to use every part of my power to do \neverything I possibly can to make sure she finally gets it.\"  \nThen she says, \"with that I turn over to Attorney General \nLetitia James.\"  So was she standing next to the Governor \nwhen the Governor made those remarks?  \nMS. VIGARS:  If that is what you are reading from, \nit was a joint press conference then, yes.  But, ultimately \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 34 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n33\nI think what we are getting into here is an ultimate \ndisagreement with the Governor's choice. \nTHE COURT:  I just want to know if she was standing \nnext to her when the Governor made those statements and then \nintroduced her as special prosecutor. \nMS. VIGARS:  I mean it was a joint press conference \nso to answer Your Honor's question, yes. \nTHE COURT:  Thank you. \nMS. VIGARS:  With respect to the merits of \nPetitioner's claim -- \nTHE COURT:  Does that run a foul of the \nprofessional rule of conduct?  \nMS. VIGARS:  Ultimately, I think we are getting a \nlittle bit far field but. \nTHE COURT:  I'm just wondering if it might. \nMS. VIGARS:  I think at this point, there is \nnothing about the Attorney General's statement on social \nmedia, there is nothing here that would indicate that theres \nanything that is going to happen, there is no reason to \nbelieve that the investigation is not going to follow where \nthe facts lead it.  Ultimately the special prosecutor as a \nconstitutional officer, as a elected officer, she has-- \nthere are all sorts of obligations that she has that would \nrequire her to follow the facts -- \nTHE COURT:  Wasn't her statement purpose of \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 35 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n34\nappointing the Attorney General to avoid conflicts, to avoid \nbias to have objective and now you got this situation where \nyour appointed attorney who has made statements that where, \nI guess from what I can see, viewed by almost 700,000 \npeople.  626,000 people, based on exhibit four.  Is that a \nproblem?  \nMS. VIGARS:  Well, Your Honor, in order to warrant \ndisqualification there has to be actual prejudice. \nTHE COURT:  Are there any cases, can either side \ncite me any cases where a prosecutor has made a public \nstatement either through social media or otherwise that has \nengendered this type of response?  \nMS. VIGARS:  There are multiple cases cited in or \nbrief.  The NRA case for example, the Trump case.  All of \nwhich involve public statements by a prosecutor which in \nthose cases did not present an impediment to prosecution. \nTHE COURT:  You agree with me, it's probably not a \ngood idea for a prosecutor to engage in that type of \nconduct?  \nMS. VIGARS:  Well that is not the question that \nneeds to be resolved by this Court. \nTHE COURT:  You wouldn't agree with me? \nMS. VIGARS:  It's not proper for this Court to \ndecide whether or not they agree with this statement.  The \nquestion before the Court is ultimately if notwithstanding \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 36 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n35\nall the procedural barriers it requires disqualification-- \nTHE COURT:  I'm asking whether a prosecutor should \nmake those types of statements. \nMS. VIGARS:  I'm hearing Your Honor's disagreement \nwith the sentiment of the statement that is coming across. \nTHE COURT:  No, I'm asking you whether you think \nit's appropriate for a prosecutor to make that statement. \nMS. VIGARS:  Ultimately I don't think public \nstatements by a prosecutor are an impediment to prosecution.  \nAt the end of the day, the obligation that the prosecutor \nhas is as duty of fair dealing to the accused.  There is \nnothing that prevents a prosecutor from making public \nstatements.  There are numerous cases-- \nTHE COURT:  There is a ethical rule. \nMS. VIGARS:  --there are a number of cases cited in \nour brief that go to public statements made by a prosecutor.  \nWhere those public statements were not an impediment to \nprosecution.  Even in matter of Schumer, those were public \nstatements that were made by the prosecutor and even there \nthe Court of Appeals found it was not proper to reach the \ndisqualification issue. \nTHE COURT:  What were the statements at issue with \nSchumer?  \nMS. VIGARS:  Concerns about the propriety, about \nthe propriety of engaging in the investigation, about their \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 37 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n36\npolitical differences.  There had been a contentious \nelection and there was some back and forth I believe in the \nmedia and in the press about it and even then, the court \nfound that disqualification was not appropriate and actually \nin that case rested on the disqualification issue turned on \njusticiability considerations.  \nSo ultimately to Your Honor, we reached the \ndisqualification issue but before you reach the \ndisqualification issue, you also have to resolve a few other \nprocedural hurdles such as whether the writ of prohibition \nlies and whether it's discretion, it's issuance is \nwarranted.  Ultimately the writ of prohibition here does not \nlie because these are executive actions.  The writ of \nprohibition exists to constrain judicial and quasi-judicial \nactions.  \nThe Governor's appointment of the Attorney General \nhere was done in exercise of her constitutional authority as \nthe executive.  It's purely an executive action.  The writ \nof prohibition would not lie against that executive action.  \nAdditionally, the Attorney General's exercise of \nthe authority given to her by the Governor is likewise an \nexecutive action.  The writ of prohibition does not lie to \nconstrain either of those actions. \nTHE COURT:  Do you think if any of these \nindividuals are prosecuted and ultimately convicted of any \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 38 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n37\noffenses involving this, this potentially could be an \nAppellate issue?  \nMS. VIGARS:  Yes and that gets into the point of \nthe discretionary factors that this Court would have to \nconsider.  If the writ of prohibition lies, whether or not \nit should issue, is a matter left to your discretion.  One \nof the factors, as to one of the discretionary factors, is \nthat adequacy of alternative remedies.  So, here ultimately \nif this ripens into a criminal prosecution, criminal \ndefendant would have the opportunity to make a post-- excuse \nme, a pretrial motion where they can raise these claims, \nthey can raise them again on direct appeal, they can raise \nthem post-conviction motions, they can raise them in other \ncollateral proceedings which is writ of habeas corpus.  \nThere are a number of other mechanisms for the Petitioner to \nraise these claims.  Additionally the unique--\nTHE COURT:  Couldn't they raise the claim before \nthe judge if there is an indictment and the court will issue \nan indictment -- \nMS. VIGARS:  Correct they can move to dismiss the \nindictment.  What is unique and I think important about \nthese alternative remedies that makes them particularly \nadequate is that at that point they'd be made on a full \nrecord.  At this point, we are speculating based on these \nstatements, what might happen.  But ultimately if there is \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 39 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n38\nan indictment and if this does move forward we have a full \nrecord.  We see how the investigation has born out, we see \nhow the thing that Petitioner fears here materialized and \nthe Judge at that point, could review to say whether or not \nPetitioner is prejudice, whether the things he's concerned \nabout, he or other criminal defendants, whether the things \nthey are concerned about actually materialized to undermine \nthe right to a fair trial, to be an inappropriate \nindictment.  Any of those things.  Matter of Abelove which \nis cited in our papers, that is exactly what I think what \nthe Court found there is, there is plenty of adequate \nalternative remedies here and that would be a discretionary \nreason why the writ of prohibition should not issue.  I do \nwant to be mindful of my time.  I think I am over the 30 \nminutes.  \nTHE COURT:  No, you have four more minutes. \nMS. VIGARS:  Okay.  I think finally, Your Honor.  I \ndo just want to say there is an alternative claim for relief \nin the petition which asks whether the Governor's actions, \nwhich asks this Court to review the Governor's actions as \narbitrary, capricious and were in an abusive discretion.  \nThat standard doesn't apply to the Governor's discretionary \naction.  That is a black-letter law those cases are cited in \nour brief.  That would require denial of that alternative \ngrounds for relief.  So for all those reasons-- \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 40 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n39\n \n  \n \n \n \n \n \n  \n \n \n \n \n \n  \n \n   \n \n \n \n \n \n \n \n \n \n  \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n  \n \n  \n \n \n \n \n \n \n \n \n  \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n  \n \n  \n \n \n \n \n \n \n \n  \n \n \n \n \n \n \n \n \n  \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n  \n \n \n  \n \n \n \n \n \n \n  \n \n  \n \n \n \n  \n \n \n  \n \n \nTHE\n \nCOURT:\n \nDo\n \nany\n \nof\n \nthose\n \ncases\n \naddress\n \na\ncriminal\n \nproceeding\n \nor\n \nare\n \nthey\n \ndifferent?\nMS.\n \nVIGARS:\n \nI\n \nbelieve\n \nthey\n \nall\n \nare\n \nadministrative\nand\n \ncivil\n \nmatters.\nTHE\n \nCOURT:\n \nIsn't\n \nthis\n \nbecause\n \nof\n \nthe\n \npotential\ncriminal\n \nnature\n \nit's\n \nvery,\n \nvery\n \nserious\n \nconstitutional\n \ndue\nprocess\n \nissue\n \nthat\n \nare\n \ninvolved\n \nhere,\n \nwere\n \nnot\n \nat\n \nissue\n \nin\nthose\n \nother\n \ncases?\nMS.\n \nVIGARS:\n \nJust\n \nto\n \ntouch\n \non\n \nthe\n \nconversation\n \nwe\njust\n \nhad.\n \nThose\n \nsort\n \nof\n \nconstitutional\n \nand\n \nother\naffirmative\n \nrights\n \nof\n \nan\n \naccused\n \nthose\n \nare\n \nthings,\n \none\n \nthat\nare\n \nnot\n \nnecessarily\n \nimplicated\n \nhere\n \nwhere\n \nthere\n \nis\n \nno\ncriminal\n \nproceeding\n \nand\n \ntwo,\n \nthey\n \nare\n \nmore\n \nproperly\n \nraised\nin\n \na\n \ncontext\n \nof\n \na\n \ncriminal\n \nproceeding\n \nwhere\n \nthey\n \ncan\n \nbe\nresolved\n \non\n \na\n \nfull\n \nrecord\n \nand\n \nthrough\n \nthose\n \nother\n \nmore\nappropriate\n \nchannels.\nSo,\n \nfor\n \nall\n \nthose\n \nreason\n \nas\n \ndetailed\n \nin\n \nour\n \nanswer,\nwe\n \nwould\n \nrespectfully\n \nrequested\n \nthe\n \nrelief\n \nrequested\n \nin\n \nthe\nverified\n \npetition\n \nbe\n \ndenied\n \nand\n \nthat\n \nthe\n \nverified\n \npetition\nof\n \nthis\n \nproceeding\n \nbe\n \ndismissed\n \nin\n \nentirety\n \nand\n \nwith\nprejudice.\nTHE\n \nCOURT:\n \nThank\n \nyou.\nMR.\n \nBERNSTEIN:\n \nAny\n \nchance\n \nof\n \ntwo\n \nto\n \nthree\n \nminutes?\nTHE\n \nCOURT:\n \nOne\n \nminute.\nMR.\n \nBERNSTEIN:\n \nOne\n \nminute\n \nokay.\n \nIf\n \nYour\n \nHonor \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 41 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n40\nrespectfully will allow us a week, three days to maybe \nsubmit supplemental briefing on joinder.  I think it's \npermissive, if Your Honor will permit that.  I would ask for \nthat. \nTHE COURT:  I think it can be dismissed under \n30--1001A if I find they are not properly joined. \nMR. BERNSTEIN:  Right, I'm asking if we can submit \nsupplemental why it should not be dismissed. \nTHE COURT:  I have a problem with this joinder \nissue because I don't understand, if your argument is there \nall going to be substantial prejudice why they haven't all \neither appeared and why you didn't serve them and put them \ntogether.  Otherwise it's not a one defendant potential \ncase.  It's a potential for seven.  You can't have seven \ndifferent proceedings and if it's acting together in concert \ntheory, it's one indictment. \nMR. BERNSTEIN:  I think it's Mr. Lopes right to do \nthis as well without -- \nTHE COURT:  It's also my right to say you didn't \njoin the proper parties and therefore it's dismissed. \nMR. BERNSTEIN:  And that is why I'm asking for \nthree days to put in supplement briefing why we believe it's \nproper.  When we filed this Petition it is certainly \nsomething that was discussed and we believed it was proper \nunder the law.  Again, the State didn't raise it we didn't \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 42 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n41\naddress -- \nTHE COURT:  I have to look at all the law when I \nlook at something.  I don't just look at what the State \nresponds I look at everything.  And 7802 (d) tells me that \nthere is a joinder issue here.  1001-A tells me it can be \ndismissed on a issue of failure to join.  There is no \ndispute, you allege in page ten, at the bottom, you allege \nthat not only will your client be prejudice but so will the \nothers, that is what you say.  Well where are the others?  \nYou make a statement but I don't know if that is accurate.  \nI don't know that, they haven't joined, you didn't join \nthem.  \nBy the way, if we would assume that they probably \nshould join based on your argument and they don't want to, \nthen you serve them as a defendant.  That is what the law \nstates. \nMR. BERNSTEIN:  Your Honor, I understand 1001 says \nit can be but I'm saying I think it's permissive and why we \nthink it's not.  That's why I'm asking supplemental on the \nissue whether you can proceed which we believe you can \nwithout them. \nTHE COURT:  What is the Attorney General's position \non any additional briefing on the joinder issue.  You didn't \nraise it but I can raise it.\nMS. VIGARS:  Yes, we agree the Court can raise it \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 43 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n42\nat any point.  To your point Your Honor, CPLR 1001-A permits \nthe Court to raise the issue of necessary parties.  \nUltimately we would oppose. \nTHE COURT:  It also gives me the authority to grant \nthem leave to serve. \nMS. VIGARS:  Yes, it does.  The option is yours \nespecially now here where the statute of limitations has not \nrun.  We would oppose that, Your Honor.  As this has been \nplaced on expedited schedule as indicated in my \ncorrespondence to the Court.  We have prepared our papers \nwith that expedited schedule in mind.  We would oppose any \nrequests that would further prolong this proceeding. \nTHE COURT:  I'll give you one week to get a joinder \napplication in. That's it. \nMR. BERNSTEIN:  A joinder application.\nTHE COURT:  Yes or submission on the issue of \njoinder.  I think you have real issues with the joinder.  It \nwasn't raised by the Attorney General.  I'll give you time \nto submit it to me, One week.\nMR. BERNSTEIN:  Thank you, Your Honor. \nTHE COURT:  By November 5th submission on that. \nMS. VIGARS:  Are you going to give the Respondents \nany time to respond?  \nTHE COURT:  I have to see what they are going to \nsay about it.  If they continue to say there is no issue of \nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026\n\n--- Page 44 ---\n1\n2\n3\n4\n5\n6\n7\n8\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\nProceedings\n43\njoinder, I'll consider that.  You didn't raise it but I'll \nconsider that.  If they wish to join, I'll give you a chance \nto respond. \nMS. VIGARS:  Thank you.\nMR. BERNSTEIN:  Thank you.\nTHE COURT:  Thank you, counsel.  Have a good day.\n(Whereupon, the proceedings were concluded.\n                   **\nCertified to be a true and accurate transcript of my \nstenographic notes.\n_____________________________________\nNICOLE DUBATOWKA\nCourt Reporter\nFILED: ALBANY COUNTY CLERK 11/05/2026 04:54 PM\nINDEX NO. 911974-26\nNYSCEF DOC. NO. 27\nRECEIVED NYSCEF: 11/05/2026","thumbnailUrl":"https://lucycraig.blog/media/758/thumb.webp","transcriptStatus":"not_applicable","transcriptText":"","url":"https://lucycraig.blog/media/758"}