Opinion
08-411.
Decided February 3, 2011.
The People by Janet DiFiore, District Attorney (Grant O'Donnell, Assistant District Attorney), Defendant by David Ortiz, Esq.
Defendant was arrested for Criminal Contempt in the Second degree in this case on December 9, 2008 and was arraigned and assigned counsel on December 16, 2008 pursuant to County Law Article 18-B. Defendant was later charged with two other crimes and the same counsel was similarly appointed. Having been tried and convicted of one of the other charges, a Probation Department Pre-Sentence Report was prepared. The Pre-Sentence Report indicated that defendant reported being employed by the City of Rye earning wages of $62,000 a year. If this is the case, the defendant might well not be"financially unable to obtain counsel. On January 18, 2011, the Court ordered the defendant to complete and submit to the Court, a Net Worth Statement in the form required by Uniform Rules (22 NYCRR) § 202.16(b) to the extent it is applicable to the defendant (and not his now ex-wife). Defendant supplied copies of his 2008 and 2009 income tax returns, together with some supporting documents, and a financial form but failed to submit a net worth statement.
The law has provided for free legal representation of the poor in criminal cases . . . well before Powell v. Alabama, 287 US 45, 53 SCt 55 and Gideon v. Wainwright, 372 US 335, 83 SCt 792. People v. Settles, 46 NY2d 154, 412 NYS2d 874. In 1881, the State Legislature adopted Criminal Procedure Law § 308, requiring courts to appoint counsel pro bono publico for indigent defendants. In 1961, the Legislature added a provision to County Law § 224(10), that authorized local governments to appropriate their own funds to contract with private agencies to provide counsel for indigent defendants. The most notable use of this authority caused the creation of the Legal Aid Society in New York City.
By statutory scheme, enacted in 1965 as Article 18-B of the County Law, New York enlarged legal representation of indigent persons accused of crime. Criminal Procedure Law § 722 provides that "[e]ach county and the governing body of the city in which a county is wholly contained shall place in operation throughout the county a plan for providing counsel to persons charged with a crime . . . who are financially unable to obtain counsel." There is no statutory definition of what constitutes being "financially unable to obtain counsel" nor any instructive case law as to its meaning. People v. Wheat, 80 Misc2d 844, 365 NYS2d 363 [Suffolk County Court 1975]. While the statute does not use the term "indigent", that phrase has been conflated with the statutory language "financially unable to obtain counsel." See generally, Determination of indigency of accused entitling him to appointment of counsel, 51 ALR 3rd 1108.
"How does financially unable to obtain counsel differ from indigent, if at all? The Court having read People v. Simmons, 31 NY2d 997, 341 N.Y.S.2d 451, 293 N.E.2d 826; People v. Salman, 31 NY2d 841, 340 N.Y.S.2d 161, 292 N.E.2d 303; Legal Aid Society of Nassau County v. Samenga, 39 AD2d 912, 333 N.Y.S.2d 729; Stream v. Beisheim, 34 AD2d 329, 311 N.Y.S.2d 542; People v. Perry, 27 AD2d 154, 278 N.Y.S.2d 323; People ex rel. Amendola v. Jackson, [ 74 Misc 2d 797, 346 NYS2d 353], finds no distinction as to the terms in issue in any of those cases. More often than not, the terms are used interchangeably. Defendant's concession, that she is not indigent, precludes a determination that she is financially unable to obtain counsel." People v. Wheat, supra at 848.
The Court is thus required to balance the defendant's Constitutional right to effective assistance of counsel and the burden to the public fisc of paying for counsel for those financially able to obtain counsel.
It cannot have been the purpose of County Law § 722 to provide appointed counsel to the stereotypical couch potato who eats bon bons while watching soap operas on a large flat screen television while chatting on their cell phone and who lives off of the distribution of a trust fund. One the other end of the spectrum, some circumstances are prima facie proof of financial inability to pay, such as being qualified to receive public assistance, Medicaid, SSI, or other income and asset based government assistance programs. Absent such qualification, the Court needs to examine the defendant's complete financial picture, including income, expenses, assets, liabilities and obligations. Impoverishment is not the criteria. Hardy v. U.S., 375 US 277. Where defendant's income after expenses of the necessities of life is insufficient to fully pay for retained counsel, defendant should be eligible for appointed counsel, but defendant's excess funds should be paid towards reimbursement of the cost of appointed counsel. U.S. v. Hennessey, 575 F Supp 119 [NDNY 1983], aff'd, 751 F2d 372 [2nd Cir. 1984]. A defendant should not be in the position of seeking assigned counsel while choosing for which non-necessities to pay or whether to keep his assets.
As part of the statutory plan for representation of persons accused of a crime, § 722-d of Article 18-B of the County Law provides a fulcrum for this balancing of defendant's rights and the public treasury. County Law 722-b says
Whenever it appears that the defendant is financially able to obtain counsel or to make partial payment for the representation or other services, counsel may report this fact to the court and the court may terminate the assignment of counsel or authorize payment, as the interests of justice may dictate, to the public defender, private legal aid bureau or society, private attorney, or otherwise.
By its language, it is clear that the statute invests the court with important case management responsibilities. While remaining sensitive to the imperatives of Gideon v. Wainright, 372 US 335, to appoint competent counsel for indigent defendants in criminal cases, the court is authorized to terminate assignment of counsel or to direct payment of counsel or other fees in whole or in part where a defendant is or becomes financially able to retain counsel or to make some payment.
The statute does not presuppose that counsel make a formal report. Where the facts of financial ability are brought to the court's attention, the court may not ignore the information. County Law § 722-d, appears to be a grossly under-utilized weapon in the battle of balancing a defendant's right to counsel and the exploding financial burden to the State of providing free representation to those who are not fully able to afford private counsel. People v. Alessi, 154 Misc 2d 322, 584 NYS2d 275 [Sup Ct Kings County 1992]. A Court has the statutory authority to order that defendant's representation by legal aid society be terminated, unless a defendant who is not indigent, assents to an arrangement providing for her to make partial payments for the representation. People v. Wheat, 81 Misc 2d 934, 367 NYS2d 161 [Suffolk County Court 1975].
Depending on the facts before it, the court may exercise its discretion, in the interests of justice, to terminate the assignment of counsel or may elect to direct payment.
Here, the defendant provided information to the Probation Department to aid in the Pre-Sentence Report. Thus, it appears the defendant himself reported the state of his financial ability to the court. Based upon the information in the Probation Report, the Court found a reasonable basis to inquire whether or not the defendant is financially able to make full or partial payment for his legal representation, instead of shifting that burden to the taxpayers. This procedure falls within the design of the legislature in enacting § 722-d of Article 18-B of the County Law. People v. Bell, 119 Misc 2d 274, 463 NYS2d 989 [Sup Ct Queens County 1983]. The trial court, in the exercise of its discretion, is vested with the authority to terminate the assignment of counsel if a defendant becomes financially able in whole or in part to retain counsel, the court should first conduct a proper allocution to determine not only the defendant's income but also to discern any financial obligations the defendant might have and other relevant economic information . People v. Lincoln, 158 AD2d 545, 551 NYS2d 314 [2nd Dept, 1990]. This Court has done so by asking for defendant's financial information. That information shows the following:
Defendant is employed by the City of Rye. [Defendant's financial information redacted]
This case is at the stage of scheduling the trial. All of the preliminary matters should have been completed. I expect that the trial of this matter would take no more than three days and that final trial preparation should take no more than three days. Thus, there remains approximately six days or 42 hours to complete this case. At the current 18-B rate of $60 per hour, the costs should be no more than $2,500 to complete this case. Based upon the information provided, it appears that the defendant is financially able to retain counsel to complete this matter.
Accordingly, IT IS ORDERED that the defendant's assignment of counsel in this case is terminated pursuant to County Law 722 since it appears that the defendant is financially able to obtain counsel, and
IT IS FURTHER ORDERED that the defendant may request a hearing of the extent of his income, assets, any financial obligations he might have and other relevant economic information.
The defendant may retrieve his tax returns and supporting documentation at the Clerk's office during business hours.