A Step Toward Counsel for All
Randall T. Eng, Presiding Justice of the Appellate Division, Second Department, writes: 'Hurrell-Harring' is a significant step toward ensuring that New York complies with its obligation to guarantee that every criminal defendant, regardless of financial means, receives the effective assistance of counsel.
January 22, 2015 at 04:38 PM
7 minute read
In 1963, the U.S. Supreme Court recognized that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him [or her].” Gideon v. Wainwright, 372 U.S. 335, 344 (1963). Accordingly, the court concluded that the Sixth Amendment right to counsel, which includes the right of an indigent defendant to have an attorney appointed to represent him or her at the government's expense, is applicable to criminal proceedings in state courts. Identifying and applying the necessary resources to meet this heavy responsibility has challenged government for over half a century.
In 1965, the New York Legislature responded to the Supreme Court's ruling in Gideon by enacting Article 18-B of the County Law, which assigns all responsibility for making attorneys available to indigent defendants to the counties of the state, except within New York City, where that responsibility is assigned to the city. This law requires the city and each of the 57 counties outside the city to establish a plan for the provision of counsel to indigent defendants. Such a plan may consist of creating a public defender office, or designating a private legal aid bureau or society, or adopting a plan of a bar association, coordinated by an administrator, under which private counsel are provided on a rotating schedule (see County Law §722). The city and the counties are also required to provide the vast majority of the funding for the compensation of assigned counsel.
Article 18-B provides that a judge, justice or magistrate of any state or local tribunal shall assign counsel in accordance with the plan adopted by the county in which the tribunal is located, or by New York City, if the tribunal is located there (see County Law §722[4], [5]). The statute mandates such assignments for indigent parties in criminal prosecutions (see CPL 170.10, 180.10, 210.15, 720.30), in post-conviction proceedings (see, e.g., CPL 440.10) where a hearing is ordered, in resentencing proceedings (see, e.g., Correction Law §601-d[4]), and in proceedings under the Sex Offender Registration Act (see Correction Law art 6-C). The statute requires assignment of counsel pursuant to a local plan not only in criminal matters, but also in various types of proceedings under the Family Court Act (see Family Court Act §262) and various types of proceedings in the Surrogate's Court (see Surrogate's Court Procedure Act §407). Furthermore, on an appeal in any of these types of criminal or non-criminal proceedings, the Appellate Division is required to assign counsel to an indigent party in accordance with the plan in effect in the locality wherein the judgment or order appealed from was entered (see County Law §722[5]).
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