Opinion
89364
Decided and Entered: January 24, 2002.
Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506 [b] [1]) to, inter alia, prohibit enforcement of an order signed by respondent Broome County Judge which awarded assigned counsel compensation to respondent James A. Mack.
William L. Gibson, County Attorney, Binghamton, for petitioner.
Eliot Spitzer, Attorney-General (Victor Paladino of counsel), Albany, for Patrick H. Mathews, respondent.
Mlynarski Cawley P.C. (Joseph F. Cawley Jr. of counsel), Binghamton, for James A. Mack, respondent.
Before: Mercure, J.P., Peters, Carpinello, Mugglin and, Lahtinen, JJ.
MEMORANDUM AND JUDGMENT
Once again advancing its interpretation of County Law § 722-b as prohibiting an award of assigned counsel compensation calculated at an hourly rate in excess of the statutory maximums of $40 per hour for time expended in court and $25 per hour for time expended out of court (see, People v. Herring, 279 A.D.2d 765, lv denied 96 N.Y.2d 711), petitioner, on behalf of the County of Broome, initiated this CPLR article 78 proceeding in the nature of prohibition to annul respondent Broome County Judge's award of counsel fees to respondent James A. Mack for his defense of a criminal prosecution against Lawton High and to prohibit enforcement thereof. By way of defense, respondents assert that a trial court's order granting compensation in excess of the statutory rates upon a showing of extraordinary circumstances is essentially administrative in nature and is thus nonjusticiable (see, id.). That was the unequivocal holding ofPeople v. Herring (supra), which applies equally whether review is sought by means of direct appeal or, as here, by means of a CPLR article 78 proceeding. Neither trial court orders granting or denying increases in the statutorily recommended fees under County Law §§ 722, 722-b and 722-c nor administrative determinations reviewing such orders provide any basis for justiciable review (see, Matter of Director of Assigned Counsel Plan of City of N.Y. [Bodek], 87 N.Y.2d 191, 194; Matter of Werfel v. Agresta, 36 N.Y.2d 624, 627; Matter of Levenson v. Lippman, 290 A.D.2d 211 [Jan. 3, 2002, 1st Dept]; Matter of Gilman v. Golfinopoulous, 284 A.D.2d 224; People v. Herring, supra, at 767).
The parties' additional contentions, including Mack's request for the imposition of sanctions against petitioner and an award of counsel fees, either need not be considered or have been considered and found to be unavailing.
Peters, Carpinello, Mugglin and Lahtinen, JJ., concur.
ADJUDGED that the petition is dismissed, without costs.