By letter application dated March 16, 2018, the Warren County Public Defender’s Office, Marcy I. Flores, Esq., moved this Court for an order relieving that Office from its obligation to provide legal representation to the above named defendant as directed by this Court’s March 16, 2018, Order of Assignment. In the letter motion, Ms. Flores asserts that: 1) the Court’s order of assignment was issued when the Defendant failed to appear in court and was issued without the defendant’s consent or request for indigent legal services; 2) the defendant is not incarcerated and, as a result, there is no need to assign counsel; 3) the defendant has not submitted an application for indigent legal services on this Court’s matter; and 4) the defendant told Ms. Flores that he does not want the Public Defender’s Office to represent him. The Public Defender’s motion does not allege any conflict of interest or any ethical concerns in their representation of the defendant. The People have taken no position on the application.Findings of FactOn October 1, 2017, the defendant was charged in this Court with the crime of Criminal Contempt in the Second Degree [Penal Law §215.50(3)]. On October 6, 2017, the defendant was arrested and arraigned on the Criminal Contempt 2d charge, with the Public Defender’s Office present. On October 6, 2017, the Public Defender’s Office was assigned to represent the defendant on the Criminal Contempt charge. On December 19, 2017, the defendant entered a plea of guilty to the charge of Criminal Contempt in the Second Degree [Penal Law §215.50(3)]. On December 19, 2017, the defendant was sentenced to a one-year conditional discharge, which required the defendant, among other things, to: a) remain arrest and conviction free, b) comply with any and all requirements of the Domestic Violence Term of this Court and attend all court dates as directed by the court, and c) to enroll in the Mens Opportunity Program through the Adirondack Samaritan Counseling Center within two weeks of December 19, 2017, and successfully complete all requirements of the Mens Opportunity Program. The defendant was represented by the Warren County Public Defender’s Office throughout the case, including the plea and sentence. Upon imposition of the sentence, the Warren County Public Defender’s Office was relieved as counsel for the defendant.On January 22, 2018, this Court issued a Declaration of Delinquency of the defendant’s conditional discharge, which alleges that the defendant has violated the December 19, 2017, conditional discharge by being arrested on new criminal charges in Saratoga County and by failing to enroll in the Mens Opportunity Program within two weeks of December 19, 2017. A Notice to Appear was sent to the defendant directing him to appear for an arraignment on the Declaration of Delinquency on February 16, 2018. On February 16, 2018, the defendant appeared for his arraignment on the Declaration of Delinquency. On this date, the defendant requested time to obtain private counsel, and the arraignment was then adjourned to March 2, 2018, for the defendant to obtain counsel. The defendant was also provided with an assigned counsel application in the event that he was not able to afford private counsel.On March 2, 2018, the defendant appeared in court and, on the record, expressed concerns that he could not afford private counsel. The defendant then requested another application for assigned counsel and stated that he would “definitely” submit his application for assigned counsel. The defendant, therefore, made a clear request for assigned counsel. The defendant’s arraignment was again adjourned to March 16, 2018, for the defendant to complete the assigned counsel application process.On March 16, 2018, the defendant failed to appear at court. On this date, Lynn Pucciarelli, Assistant Public Defender, indicated on the record that the defendant was not in court because he was going to a health center. This Court had also received a call from the defendant indicating that he was unable to appear at court because he was going to an unidentified health center. This Court inquired of Ms. Pucciarelli if the Public Defender’s Office was appearing to represent the defendant, and Ms. Pucciarelli indicated that she was not aware if the defendant had completed an assigned counsel application. Ms. Pucciarelli stated that the defendant was presently being represented by the Warren County Public Defender’s Office on unrelated charges in the Queensbury Town Court.Based on the defendant’s March 2, 2018, statement, made on the record, that he was unable to afford private counsel and that he “definitely” wanted to apply for assigned counsel, and further based on Ms. Pucciarelli’s March 16, 2018, representation that the Public Defender’s Office was presently representing the Defendant on pending charges in the Queensbury Town Court, this Court issued a March 16, 2018, Order of Assignment directing the Warren County Public Defender’s Office to provide legal representation to the defendant on this Court’s pending Declaration of Delinquency. The Public Defender now seeks to vacate that Order of Assignment.Conclusions of LawThe right to legal representation in a criminal matter is a basic right guaranteed by the Constitutions of New York and the United States and by state statutes. Gideon v. Wainwright, 372 U.S. 335 (1963); Hurrell-Harring v. State, 15 NY3d 8, 930 N.E.2d 217 (2010). In 1965, the Court of Appeals held that the right to legal counsel in criminal cases included all crimes, including both misdemeanors and felonies, not just major crimes. People v. Witenski, 15 NY2d 392 (1965). In response to the Gideon and Witenski decisions, New York enacted County Law Article 18-B and created a county-based system of delivering mandated legal services to indigent defendants to ensure that they receive meaningful and effective assistance of counsel.Thus, the State constitutional right to counsel has been held to be a “cherished principle” that is worthy of the “highest degree of [judicial] vigilance. People v. Ramos, 99 NY2d 27, 32 (2002), quoting, People v. West, 81 NY2d 370, 373 (1993), citing, People v. Harris, 77 NY2d 434, 439 (1991); People v. Settles, 46 NY2d 154, 160-161 (1978); People v. Cunningham, 49 NY2d 203, 207 (1980). The defendant’s constitutional right to counsel attaches indelibly in two situations. First, it arises where, as here, formal criminal proceedings have commenced against the defendant, “whether or not the defendant has actually retained or requested a lawyer.” People v. Ramos, supra at 32-33 (2002), citing, People v. Di Biasi, 7 NY2d 544 (1960)(emphasis added). Second, the right to counsel attaches when an uncharged individual “has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter.” People v. Ramos, supra at 33 (2002), citing, People v. West, 81 NY2d 370, 373-374 (1993); People v. Skinner, 52 NY2d 24 (1980); People v. Hobson, 39 NY2d 479, 481 (1976).In Hurrell-Harring v. State, the Court of Appeals held that “[i]t is clear that a criminal defendant, regardless of wherewithal, is entitled to ‘the guiding hand of counsel at every step in the proceedings against him.’” Hurrell-Harring v. State, 15 NY3d 8, 20 (2010), citing, Gideon v. Wainwright, 372 US at 345, quoting, Powell v. Alabama, 287 US 45, 69 (1932). The Court of Appeals further held that the right to counsel attaches at the defendant’s initial arraignment. Id., citing, Rothgery v. Gillespie County, 554 US 191, 128 S Ct 2578 (2008).Thus, the defendant has the right to have the “aid of counsel at the arraignment and at every subsequent stage of the action…” CPL 170.10(3). Pursuant to CPL 170.10, during the defendant’s arraignment, the Judge has the obligation to inform the defendant of his/her rights, to provide the defendant with an opportunity to exercise those rights, and the court must take “affirmative action as is necessary” to enforce the defendant’s legal rights. CPL 170.10(3) and (4)(a).Based on these legal principles, this Court has considered and now addresses the Public Defender’s application to vacate the March 16, 2018, Order of Assignment.A. Order Issued Without the Defendant’s Consent or Request.In the present case, the Public Defender asserts that this Court’s March 16, 2018, Order of Assignment should be vacated because the order was issued when the defendant was not present in court and that the order was issued without the defendant’s request or consent. The Public Defender’s assertion that the defendant did not request or consent to the appointment of counsel, however, is directly contradicted by the defendant’s March 2, 2018, statements made on the record.At his March 2, 2018, appearance, the defendant indicated that he was very concerned that he could not afford private counsel. He then requested another application for assigned counsel and stated that he would “definitely” be submitting the application for assigned counsel. The defendant was then granted a further adjournment to March 16, 2018, to complete the application.While the defendant may have advised the Public Defender that he does not want that office to represent him, the defendant has never advised this Court of that claim. He has never advised this court that he is financially able to afford counsel. No other attorney has filed a notice of appearance for the defendant. The defendant has never made an unequivocal request for self-representation. People v. Santos, 243 AD2d 334, 334, 664 N.Y.S.2d 535 (1st Dept. 1997), lv. den., 91 NY2d 880, 668 N.Y.S.2d 578, 691 N.E.2d 650 (1997). Instead, the defendant made a clear statement, on the record, that he “definitely” wanted an opportunity to apply for assignment of counsel.Finally, the defendant may claim that he does not want the Public Defender’s Office to represent him, the defendant’s preference for a particular assigned attorney is not controlling. While indigent defendants are entitled to assigned counsel, “this entitlement does not encompass the right to counsel of one’s own choosing.” People v. Puccini, 145 AD3d 1107, 1109 (3d Dept. 2016), lv to appeal denied, 29 NY3d 1035 (2017), quoting, People v. Porto, 16 NY3d 93, 99, 917 N.Y.S.2d 74, 942 N.E.2d 283 (2010). To warrant a substitution of assigned counsel, defendant is required “to make specific factual allegations of serious complaints about counsel. If such a showing is made, the court must make at least a minimal inquiry, and discern meritorious complaints from disingenuous applications by inquiring as to the nature of the disagreement or its potential for resolution.” People v. Porto, 16 NY3d at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283; People v. Puccini, 145 AD3d 1107, 1109 (3d Dept. 2016), lv to appeal denied, 29 NY3d 1035 (2017). Here, defendant has never articulated any specific complaints about the Public Defender’s representation. His alleged general dissatisfaction with the Public Defender’s representation is insufficient to warrant substitution. People v. Puccini, 145 AD3d 1107, 1109 (3d Dept. 2016), lv. den., 29 NY3d 1035 (2017), citing, People v. Davenport, 58 AD3d 892, 895, 870 N.Y.S.2d 169 (3d Dept. 2009), lv. den., 12 NY3d 782, 879 N.Y.S.2d 59, 906 N.E.2d 1093 (2009).B. Defendant’s Failure To Complete The Application.The Public Defender further asserts that this Court’s Order of Assignment should be vacated, because the defendant has failed to complete the application for assigned counsel in this matter. This argument is also without merit.In New York State, courts have the ultimate authority for determining eligibility for assigned counsel. See; County Law §722; CPL 170.10(3)(c); CPL 180.10(3)(c); People v. Rankin, 46 Misc 3d 791, 802-803 (County Ct, Monroe County, 2014)(holding that, in New York State, “an indigent defendant’s eligibility determination rests with the court”). While the courts may delegate the responsibility of screening the defendant’s financial eligibility to other agencies, such as an Assigned Counsel Administrator, the Court has the ultimate responsibility to determine whether the defendant is eligible for assigned counsel. County Law §722; CPL 170.10(3)(c); CPL 180.10(3)(c).In 2016, the Office of Indigent Legal Services [ILS] published its Criteria and Procedures for Determining Assigned Counsel Eligibility. ILS’s Criteria and Procedures became effective in all counties, outside the City of New York, on April 1, 2017. ILS’s Criteria and Procedures provided a proposed application for defendants to complete to assist the Court in determining eligibility. See; ILS Criteria and Procedures for Determining Assigned Counsel Eligibility, April 2016, Appendix D, pp.69-73. However, the ILS’s Criteria and Procedures sets forth certain presumptions of eligibility that are intended to streamline the eligibility application process. See; ILS Criteria and Procedures for Determining Assigned Counsel Eligibility, April 2016, pp. 20-24. If a “presumption of eligibility” applies to the defendant, then that presumption “…is rebuttable only where there is compelling evidence that the applicant has the financial resources sufficient to pay for a qualified attorney and the other expenses necessary for a competent defense.” See; ILS Criteria and Procedures for Determining Assigned Counsel Eligibility, April 2016, pg.20.ILS’s Criteria and Procedures further provide, in pertinent part, that a defendant is presumed to be eligible where the defendant has “within the past six months, been deemed eligible for assignment of counsel in another case in that jurisdiction or another jurisdiction shall be presumed eligible.” See; ILS Criteria and Procedures for Determining Assigned Counsel Eligibility, April 2016, pg.12.In the present case, the defendant was found to be eligible for assigned counsel by this Court in October of 2017. The defendant was still eligible for assigned counsel in December of 2017 when, with the assistance of Public Defender’s Office, he entered his guilty plea to the charge of Criminal Contempt 2d in this Court. More importantly, according to the Public Defender’s Office, the defendant is presently assigned to be represented by that office on unrelated criminal charges pending in the Queensbury Town Court. The fact that the defendant is presently represented by assigned counsel in an adjoining court within this county constitutes competent evidence that the defendant is actually, not just presumptively, qualified for assigned counsel in this Court’s pending case. Thus, absent some compelling evidence of a substantial change in the defendant’s financial situation, this Court finds that the defendant is qualified for assigned counsel. If the County later determines that the defendant was not eligible for indigent legal services, then the county can seek reimbursement of the legal services from the defendant. County Law §722-d.C. Defendant Is Not In Custody.The Public Defender asserts that, because the defendant is not in custody, an assignment of counsel is not necessary. This argument coincides with the Public Defender’s Office’s policy of advising defendants that their office will no longer represent a defendant, when the defendant is released from jail, even though the court has issued an Order of Assignment. This argument is without merit.Once an attorney has appeared for a criminal defendant, either by assignment or by being retained, the attorney can not discontinue representation of the defendant, without approval of the court. See; 22 NYCRR 1200, Rule 1.16; 22 NYCRR 604.1(6). In order to withdraw from a case, the attorney must show that the withdrawal is justified, must give reasonable notice to the client, and must receive the court’s permission. Upon court approval of termination of representation, a lawyer must take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the rights of the client, including giving reasonable notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, promptly refunding any part of a fee paid in advance that has not been earned and complying with applicable laws and rules. 22 NYCRR 1200, Rule 1.16(e).Thus, contrary to the Public Defender’s assertion, a defendant is entitled to counsel at each stage and each proceeding of the case, regardless of whether the defendant is incarcerated. CPL 170.10(3); Hurrell-Harring v. State, 15 NY3d 8, 20 (2010); Gideon v. Wainwright, 372 US at 345; Powell v. Alabama, 287 US 45, 69 (1932). While the arraignment of a defendant, who is not incarcerated, may be adjourned to provide the defendant with additional time to either retain counsel or apply for assigned counsel, the adjournment should be relatively brief. Lengthy adjournments are prejudicial to both the defendant and to the People. During the period that the defendant remains unrepresented, potential defenses are not investigated or reviewed. Discovery is not conducted and motions are delayed. Potential witnesses move or otherwise become unavailable over time, and their recollection can fade. Evidence can become stale, lost or destroyed with unnecessary delays.In the present case, the defendant’s arraignment has been adjourned for a period of a month to allow the defendant to either retain private counsel or to complete the application for assigned counsel. There is no legal or factual reason for further adjournments for counsel. On March 2, 2018, the defendant indicated that he wanted assigned counsel and requested an application. He indicated that he would “definitely” file the application to determine eligibility for that assignment. On March 16, 2018, this Court was advised by the Public Defender’s Office that the defendant was qualified for assigned counsel, since the Public Defender’s Office was assigned to represent the defendant on unrelated criminal charges in another court. Based on these facts, on March 16, 2018, this Court was obligated to take “affirmative action as is necessary” to enforce the defendant’s legal rights, and the Order of Assignment was issued. CPL 170.10(3) and (4)(a).Based on the foregoing, the Public Defender’s application to vacate this Court’s March 16, 2018, Order of Assignment is denied, without prejudice.Dated: March 20, 2018
