Monday, March 19, 2012

New York City's Indigent Representation Plan Approved

A decision from the New York Appellate Division for the First Judicial Department:

In this article 78 proceeding, we are called upon to judge the legality, not the wisdom or the prudence, of the City of New York's proposed revisions to its Indigent Defense Plan with respect to the assignment of counsel in cases in which the initial provider at arraignment is unable to represent the indigent person due to a conflict of interest. Upon our review of the record and relevant statutes, we conclude that the City's revised plan,and its proposed implementation pursuant to Chapter 13 of Title 43 of the Rules of the City of New York (43 RCNY 13-01 et seq.), is not arbitrary and capricious or irrational (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974]), does not require the consent of the county bar associations (the County Bars), and does not violate section 722 of article 18-B of the County Law (as amended by L 2010, ch 56, pt E, § 3) or Municipal Home Rule Law § 11(1)(e).

The revised plan is a lawful "combination" plan under County Law § 722(4), providing indigent representation under the "private legal aid bureau or society" option of § 722(2), which, contrary to petitioner's contention, is not restricted to primary assignments, and the "plan of a bar association" option of  § 722(3), which, contrary to petitioner's contention, does not give the County Bars the exclusive right to provide "conflict counsel." Although the revised plan provides for the assignment of conflict cases to institutional providers under § 722(2), it continues to permit the assignment of conflict cases to private counsel serving on Criminal Defense Panels (see 43 RCNY 13-03) created under the authority of Executive Order 178 of 1965 and pursuant to the 1965 "Bar Plan," to be administered in accordance with the rules of the Appellate Division, First and Second Departments (Executive Order 136 of 2010), and does not improperly usurp the role of the County Bars. Nor does the plan either eliminate the judiciary's right under County Law § 722(4) to assign counsel when a conflict of interest prevents assignment pursuant to the plan or displace the judiciary's role in authorizing the appointment of experts (see 43 RCNY 13-05).

There is a dissent:

This proceeding challenges the plan of respondents Mayor Bloomberg, his Criminal Justice Coordinator (CJC) and the City of New York to make changes to the indigent defense system in New York City that has been in place since 1965. The core of the dispute is the manner in which the City proposes to assign so-called "conflict cases" - cases in which the primary provider at arraignment (The Legal Aid Society or another legal aid organization) is unable to accept representation due to a conflict of interest. Until recently, conflict defense counsel have been appointed through panels of individual attorneys created and administered by the County Bar Associations, Assigned Counsel Panels commonly referred to as 18-B Panels. However, in January 2010, the City revised Title 43 of the Rules of the City of New York by adding Chapter 13, which provides that in the case of a conflict, counsel may be appointed from either Assigned Counsel Panels or from one of the legal aid providers.

Subsequent to the commencement of this proceeding, through discovery and representations made at oral argument, it has become evident that the City's ultimate goal is to have Legal Aid serve as the primary provider of conflict defense counsel. Petitioners claim that the City's new plan violates County Law  § 722 and Municipal Home Rule Law § 11(1)(e). I agree.

(Mike Frisch)

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