Relates to the representation of defendants when a conflict arises with the public defender's office

Summary of provisions

Section 1 would add language to Section 722 of the County Law that sets requirements to governing bodies for their plans to provide counsel to indigent persons to clarify the manner in which counsel for criminal conflict cases are furnished.

Section 2 would provide an immediate effective date for this act.

Justification

In 1962, the United States Supreme Court unanimously held that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own attorneys. Pursuant to this requirement, New York State provided a plan for representation in f 722 of the County Law that established mechanisms for providing indigent defense counsel. One of the mechanisms provided for under the law was the assignment of private attorneys pursuant to a plan of a bar association, who have come to commonly be known as 18-b attorneys, so-named for the Article of the County Law providing for them.

The 18-b panels that assign attorneys to cases are typically staffed with veteran attorneys and are associated with the bar association of the county in which they operate. They are experienced litigations who provide duality representation to indigent defendants at an affordable cost to the state. Many of these lawyers have been honored for their excellent work and Chief Judge Kaye has written a report detailing the importance of the 18-b program.

In the last few years, the Legislature has enacted several measures to ensure that indigent defendants are receiving proper representation. In 2009, a criminal defense case cap for New York City was enacted that allowed for a four-year implementation period to decrease the number of cases that each attorney is responsible to manage. Last year, an Office of Indigent Legal Services was established. The new office is charged with monitoring, studying and making recommendations and efforts to improve the duality of services provided under Article 16-b of the county law.

In addition to the new office, a provision authorizing the establishment of conflict defender offices through a plan of a bar association approved by the state administrator using the guidelines established by the Office of Indigent Legal Services was enacted. Counties utilizing an office of conflict defender prior to March 31, 2010 may continue to do so. However, upon the completion of criteria for conflict defender offices by the Office of Indigent

Legal Services, those counties must submit a, plan to the state administrator within 180 days for approval of their offices.

Unfortunately, some municipalities have attempted to exploit ambiguities in the existing law and proposed changes to their indigent defense plans that usurp the long-standing role of bar associations - those best suited to protect and preserve the Constitutional rights of the indigent accused and the crucial role of experienced court-appointed private counsel. Such changes would further overburden existing providers by requiring them to provide not only primary criminal defense counsel but also counsel in conflict cases, which by their very nature tend to be the most complex of criminal matters. While entities such as legal aid societies or bureaus and public defenders are fighting to maintain and ultimately decrease caseloads, the addition of conflict cases is contrary to the current trend and against public policy. Certainly the desire of localities to save money is understandable, but not when it jeopardizes the Constitutional rights of its citizens.

This bill would preserve the indigent defense system as it currently stands. Those counties with Conflict Defender offices are not disrupted and there is a mechanism for future offices to be approved after criteria are developed by the Office of indigent Legal services. This bill would simply clarify the already existing law to ensure that those defendants within conflict cases are confident that there is no impediment to their representation, no conflict between their attorney within their case and that any changes to the system will be done in a thoughtful, deliberate manner and not solely on a cost basis.

Legislative history

This is a new bill

Fiscal implications

None.

Effective date

This act would take effect immediately.