Relates to off-hours arraignment parts in counties outside the city of New York

In Hurrell-Harring v New York (15 NY3d 8 (2010)), the Court of Appeals reaffirmed the fundamental right of an indigent accused of crime to be represented by counsel at material stages of criminal proceedings. The Court unequivocally declared that this right attaches at an accused's arraignment, both as a statutory obligation under New York law (see CPL 170.10(3), 180.20(3)), and as a constitutional requirement under the United States Supreme Court's seminal decision in Gideon v Wainwright (372 U.S. 335 (1963)). As stated by the Court, "nothing in the statute may be read to justify the conclusion that the presence of defense counsel at arraignment is ever dispensable, except at a defendant's informed option, when matters affecting the defendant's pretrial liberty or ability subsequently to defend against the charges are to be decided. Nor is there merit to . . . (the) suggestion that the Sixth Amendment right to counsel is not yet fully implicated . . ." (15 NY3d at 21).

In practice, however, local courts, county governments and indigent defense providers struggle to meet these critical obligations, most notably during off-hours arraignments. In many jurisdictions, local law enforcement do not have the ability to detain an accused in a local lockup, either because of inadequate overnight holding facilities or lack of staffing or both. Therefore, when a suspect is arrested at night or on weekends, the police must ask the local judge to re-open the courthouse to conduct an off-hours arraignment and issue a securing order either releasing the defendant on recognizance or authorizing detention at a county facility (see CPL 170.10(7); 180.10(6)). Finding qualified defense counsel for indigent defendants in these circumstances can be extremely difficult. The responsibility for finding counsel often falls upon the individual judge, and the nearest qualified counsel may be unreachable or unavailable. Similarly, off-hours arraignments place great strain on indigent defense providers and prosecutors. Inadequate county funding, long travel times to the courthouse and too few qualified attorneys in sparsely-populated counties can result in both prosecutors and defense counsel being unable to attend an off-hours arraignment. The court has limited options in such a case: failure to conduct the arraignment may jeopardize public safety or result in unnecessary detention of the defendant, yet issuing a securing order without defense counsel may create serious legal and ethical issues.

The historic settlement of the Hurrell-Harring lawsuit promises some welcome relief in this area, at least for the five counties involved in the settlement (Onondaga, Ontario, Schuyler, Suffolk and Washington). Among other conditions, the settlement tasks the Office of Indigent Legal Services (ILS) with oversight and authority to distribute grant funding to improve delivery of indigent defense services in those counties, including money to ensure counsel at first appearance. However, Hurrell-Harring does not address the remaining counties in the state, and it is expected that complying with statutory and constitutional mandates at arraignment proceedings will continue to be challenging.

This measure is designed to facilitate the availability of public defenders or assigned counsel for defendants in need of legal representation at arraignments, without unduly burdening local government or placing additional stress on each of the stakeholders in the system, including magistrate judges, law enforcement and indigent defense service providers. The measure broadens the jurisdiction of local courts to conduct off-hours arraignments in special off-hours arraignment parts, staffed by the same judges who currently preside over arraignments. By authorizing off-hours arraignments in only a few locations, the necessary stakeholders will benefit from having fewer courts to cover. Additionally, local law enforcement will be able to rely on there always being a court available to issue securing orders. Finally, local magistrate judges, who now must be on call at all hours and all days, will need to open their courthouses on only designated days in accordance with a rotation schedule, published in advance, that will provide for periodic assignment of all of the judges or justices of the local criminal courts in the affected counties.

This measure also recognizes that many courts have evening hours, and thus an individual local court may be available at the same time that the off-hours part is operating. In such a case, local law enforcement may bring the suspect to the open court for arraignment, provided that there is a defense attorney available to represent defendant at the arraignment. If no attorney, is available, the measure provides that the court must direct that the arraignment be continued in the off-hours part.

Section one of the measure adds Judiciary Law § 212(w), authorizing the Chief Administrative Judge, after consulting with the necessary stakeholders, and with the approval of the Administrative Board of the Courts, to establish a plan for the designation of off-hours arraignment parts in the local criminal courts of a county to be held on a rotating basis.

Sections two, three and four of the measure amend CPL sections 100.55, 120.90 and 140.20 to provide that where an off-hours arraignment part has been established in a local criminal court of a county, law enforcement authorities must bring each person arrested in the county while such part is operational before the part for filing of the accusatory instrument and arraignment thereon. Following arraignment, the off-hours court is required to remit the action to a court that has trial jurisdiction over that action (CPL 170.15; 180.20).

Section five of the measure amends section 106 of the Uniform Justice Court Act to add a cross-reference to § 212(w) of the Judiciary Law to make clear that assigned judges and justices have jurisdiction to handle matters in an off-hours arraignment part.

The measure will be effective 90 days after being signed into law and is anticipated to realize significant savings to localities in meeting their statutory and constitutional obligations for assigned counsel to appear at arraignments.

2016 LEGISLATIVE HISTORY :

OCA 2016-67R Senate 7209 (Senator Bonacic) (referred to Judiciary)