The 2009-2010 term of the New York Court of Appeals fulfilled Chief Judge Jonathan Lippman’s promise: the Court heard more criminal cases than in any year in the past decade.1 Of the 83 cases, the two most important were not challenges to convictions but to “the system.”
In Hurrell-Harring v. New York, the Court considered the justiciability of a class action suit brought on behalf of indigent criminal defendants alleging that five upstate counties had failed to provide them with effective representation.2 Writing for the majority, Chief Judge Lippman distinguished between a “claim for non-representation” and one for “inadequate representation” and concluded that the former (but not the latter) could “be brought without the context of a completed prosecution.” Reading the complaint liberally, Judge Lippman found that it stated a claim for non-representation and therefore was justiciable. He recognized that “a remedy in this action would necessitate the appropriation of funds…and some reordering of legislative priorities.”
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