S T A T E O F N E W Y O R K
________________________________________________________________________
8793
2009-2010 Regular Sessions
I N A S S E M B L Y
June 9, 2009
___________
Introduced by M. of A. LENTOL, GOTTFRIED, PAULIN, CAHILL, CLARK, CANES-
TRARI, ENGLEBRIGHT, JACOBS, DINOWITZ, POWELL, PEOPLES, KAVANAGH,
ROSENTHAL, BENEDETTO, WEINSTEIN, JOHN, SCHIMEL, LANCMAN, O'DONNELL,
LATIMER -- Multi-Sponsored by -- M. of A. ABBATE, ALFANO, AUBRY,
BACALLES, BENJAMIN, BING, BOYLAND, BRADLEY, BRENNAN, BRODSKY,
BROOK-KRASNY, CYMBROWITZ, DenDEKKER, ESPAILLAT, FARRELL, FIELDS,
GANTT, GIGLIO, GLICK, GORDON, HEASTIE, HIKIND, HOOPER, HOYT, JAFFEE,
JEFFRIES, KELLNER, LAVINE, LIFTON, V. LOPEZ, LUPARDO, MAGEE, MAGNAREL-
LI, MAISEL, MARKEY, McENENY, MILLMAN, MORELLE, ORTIZ, PARMENT, PERRY,
PHEFFER, PRETLOW, REILLY, N. RIVERA, P. RIVERA, ROBINSON, SCARBOROUGH,
SCHROEDER, SCOZZAFAVA, SWEENEY, THIELE, TITONE, TITUS, TOWNS, TOWN-
SEND, WEISENBERG, WRIGHT -- read once and referred to the Committee on
Judiciary
AN ACT to amend the judiciary law, the county law, and the state finance
law, in relation to establishing the public defense act of 2009; and
to repeal articles 18-A and 18-B of the county law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The judiciary law is amended by adding a new article 15-A
to read as follows:
ARTICLE 15-A
PUBLIC DEFENSE ACT OF 2009
SECTION 499-A. SHORT TITLE.
499-B. PURPOSES.
499-C. DEFINITIONS.
499-D. PUBLIC DEFENSE COMMISSION ESTABLISHED.
499-E. PUBLIC DEFENSE COMMISSION; APPOINTMENTS AND QUALIFICA-
TIONS.
499-F. PUBLIC DEFENSE COMMISSION; TERMS OF OFFICE; DESIGNATION
OF CHAIRPERSON; RE-APPOINTMENT; VACANCIES AND COMPEN-
SATION.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11952-03-9
A. 8793 2
499-G. PUBLIC DEFENSE COMMISSION; GENERAL POWERS, DUTIES AND
RESPONSIBILITIES.
499-H. STATE DEFENDER.
499-I. ASSISTANCE BY STATE OFFICES, DEPARTMENTS, BOARDS, DIVI-
SIONS AND COMMISSIONS AND FROM LOCALITIES AND PUBLIC
DEFENSE PROVIDERS.
499-J. INDEPENDENCE; FISCAL DISCIPLINE.
499-K. FINANCING TRANSITION ADVISORY COUNCIL TO THE COMMISSION.
499-L. ENFORCEMENT OF STANDARDS; PROHIBITION.
499-M. ELIMINATION OF LOCAL RESPONSIBILITY FOR PUBLIC DEFENSE
SERVICES; FIXED ANNUAL LOCAL OFFSET CONTRIBUTION.
S 499-A. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AS AND MAY BE CITED
AS THE "PUBLIC DEFENSE ACT OF 2009".
S 499-B. PURPOSES. THE PURPOSES OF THIS ARTICLE ARE TO: 1. IMPROVE THE
QUALITY OF PUBLIC DEFENSE SERVICES STATEWIDE BY IMPLEMENTING STATE OVER-
SIGHT, FUNDING AND CONTROL OF PUBLIC DEFENSE SERVICES, WHILE PROVIDING
FOR THE PLANNING AND IMPLEMENTATION OF THE STATE'S ASSUMPTION OF THESE
RESPONSIBILITIES IN A MANNER THAT IS RESPONSIVE TO REGIONAL AND COMMUNI-
TY NEEDS;
2. ENSURE THAT PUBLIC DEFENSE REPRESENTATION IS PROVIDED WITHIN A
TRULY INDEPENDENT ATMOSPHERE FREE FROM POLITICAL INFLUENCE AND CONFLICTS
OF INTEREST;
3. LIMIT THE FISCAL BURDEN ON LOCALITIES BY IMPLEMENTING FULL STATE
ADMINISTRATION AND FUNDING OF PUBLIC DEFENSE SERVICES SUBJECT TO AN
EQUITABLE FIXED ANNUAL OFFSET CONTRIBUTION;
4. GUARANTEE THAT STATE AND LOCAL FUNDS FOR PUBLIC DEFENSE SERVICES
ARE MANAGED IN AN EFFICIENT AND COST EFFECTIVE MANNER WITHOUT SACRIFIC-
ING QUALITY OF REPRESENTATION;
5. ESTABLISH A PUBLIC DEFENSE COMMISSION AS A PUBLIC BENEFIT CORPO-
RATION RESPONSIBLE FOR OVERSEEING PUBLIC DEFENSE SERVICES AND PLANNING
AND IMPLEMENTING STATE ADMINISTRATION OF PUBLIC DEFENSE SERVICES
THROUGHOUT THE STATE; ENSURING THAT SUCH SERVICES ARE DELIVERED BY QUAL-
IFIED AND COMPETENT ATTORNEYS IN A MANNER THAT IS FAIR, EFFECTIVE AND
UNIFORM; AND DEVELOPING POLICIES, PROCEDURES AND STANDARDS FOR THE
DELIVERY OF SUCH SERVICES; AND
6. ENHANCE OVERSIGHT OF THE DELIVERY OF PUBLIC DEFENSE SERVICES BY
GENERATING RELIABLE STATISTICAL INFORMATION AND DATA NEEDED TO EVALUATE
THE SERVICES PROVIDED AND FUNDS EXPENDED.
S 499-C. DEFINITIONS. FOR PURPOSES OF THIS ARTICLE: 1. "CLIENT" MEANS
ANY PERSON WHO RECEIVES OR HAS RECEIVED PUBLIC DEFENSE SERVICES.
2. "CLIENT COMMUNITY" MEANS CLIENTS, THEIR FAMILIES, LOCAL NEIGHBOR-
HOODS IN WHICH A SIGNIFICANT NUMBER OF CLIENTS LIVE AND ORGANIZATIONS
DEDICATED TO PROVIDING SUPPORT OR ADVOCACY TO CLIENTS, THEIR FAMILIES
AND LOCAL NEIGHBORHOODS.
3. "COMMISSION" MEANS THE THIRTEEN MEMBERS COMPRISING THE PUBLIC
DEFENSE COMMISSION.
4. "ELIGIBLE PERSON" MEANS ANY PERSON ELIGIBLE TO RECEIVE PUBLIC
DEFENSE SERVICES.
5. "LOCALITY" MEANS ANY REGION IN NEW YORK, INCLUDING A COUNTY, A PART
OF A COUNTY OR A GROUP OF COUNTIES OR PARTS OF COUNTIES EXCEPT THAT
WITHIN A COUNTY IN THE CITY OF NEW YORK SUCH TERM SHALL MEAN THE CITY OF
NEW YORK.
6. "PUBLIC DEFENSE SERVICES" MEANS PUBLICLY-FINANCED LEGAL REPRESEN-
TATION, INCLUDING THE SERVICES OF ATTORNEYS AND/OR ALL INVESTIGATIVE AND
NECESSARY ANCILLARY SERVICES PROVIDED TO PERSONS UNABLE TO AFFORD THEM
AND SUSPECTED OF, ACCUSED OF, CHARGED WITH, OR CONVICTED OF, COMMITTING
A. 8793 3
A FELONY, MISDEMEANOR, OR THE BREACH OF ANY LAW OF THIS STATE OR OF ANY
LAW, LOCAL LAW OR ORDINANCE OF A POLITICAL SUBDIVISION OF THIS STATE FOR
WHICH A SENTENCE TO A TERM OF IMPRISONMENT IS AUTHORIZED UPON
CONVICTION THEREOF, INCLUDING REPRESENTATION AT THE PRETRIAL, TRIAL,
APPELLATE AND POST-CONVICTION STAGES IN CRIMINAL CASES, OR ENTITLED TO
REPRESENTATION UNDER SECTION TWO HUNDRED SIXTY-TWO OF THE FAMILY COURT
ACT OR OTHERWISE ENTITLED TO PUBLIC REPRESENTATION IN FAMILY COURT,
SUPREME COURT, SURROGATE'S COURT, PAROLE PROCEEDINGS AND RELATED APPEALS
UNDER THE EXECUTIVE LAW, IN CLASSIFICATION PROCEEDINGS UNDER ARTICLE
SIX-C OF THE CORRECTION LAW AND RELATED APPEALS AND IN ALL OTHER CASES
WHERE COUNSEL IS OR MAY BE PROVIDED FOR BY LAW.
7. "PUBLIC DEFENSE SERVICE PROVIDER" OR "SERVICE PROVIDER" MEANS AN
ENTITY OR INDIVIDUAL AUTHORIZED BY LAW TO PROVIDE PUBLIC DEFENSE
SERVICES.
S 499-D. PUBLIC DEFENSE COMMISSION ESTABLISHED. 1. THERE IS HEREBY
ESTABLISHED THE NEW YORK STATE PUBLIC DEFENSE COMMISSION, A BODY CORPO-
RATE CONSTITUTING A PUBLIC BENEFIT CORPORATION.
2. THE COMMISSION SHALL RECEIVE AN APPROPRIATION FROM THE INDIGENT
LEGAL SERVICES FUND, ESTABLISHED PURSUANT TO SECTION NINETY-EIGHT-B OF
THE STATE FINANCE LAW, IN THE AMOUNT OF THREE MILLION DOLLARS FOR FISCAL
YEAR TWO THOUSAND NINE-TWO THOUSAND TEN TO ESTABLISH AND STAFF AN
OFFICE, ADAPT THE PUBLIC DEFENSE CASE MANAGEMENT SYSTEM, CONTRACT AND
CONSULT WITH COMPETENT EVALUATORS, EXPERTS, AND THE NEW YORK STATE
DEFENDERS ASSOCIATION PUBLIC DEFENSE BACKUP CENTER, BEGIN THE ESTABLISH-
MENT OF APPROPRIATE PRIVATE-PUBLIC PARTNERSHIPS AND DEVELOP A WORK PLAN
FOR AND OTHERWISE CARRY OUT ITS GENERAL POWERS, DUTIES AND RESPONSIBIL-
ITIES AS DEFINED IN THIS ARTICLE.
3. THE COMMISSION SHALL OPERATE INDEPENDENTLY FOR THE IMPROVEMENT OF
THE PUBLIC DEFENSE SYSTEM AND SHALL BE FREE FROM POLITICAL INTERFERENCE.
4. THE BUDGET FOR THE COMMISSION SHALL INCLUDE, BUT NOT BE LIMITED TO,
THE SALARIES OF ALL COMMISSION PERSONNEL, AN ALLOCATION FOR OFFICE
EXPENSES, FURNITURE, COMPUTERS, LIBRARY, AND AN ALLOCATION FOR SUCH
ADDITIONAL ITEMS AS MAY BE NECESSARY FOR THE COMMISSION TO PERFORM ITS
FUNCTIONS PURSUANT TO THIS ARTICLE.
5. THE COMMISSION WILL BE PERFORMING AN ESSENTIAL GOVERNMENTAL FUNC-
TION IN THE EXERCISE OF THE POWERS CONFERRED UPON IT BY THIS ARTICLE AND
THE COMMISSION SHALL NOT BE REQUIRED TO PAY TAXES OR ASSESSMENTS UPON
ANY OF THE PROPERTY ACQUIRED BY IT OR UNDER ITS JURISDICTION AND
CONTROL.
6. ALL CONTRIBUTIONS MADE TO THE COMMISSION WHETHER BY GIFT, DEVISE,
GRANT, DONATION OR BEQUEST SHALL QUALIFY AS DEDUCTIONS IN COMPUTING THE
NET TAXABLE INCOME OF THE DONOR FOR THE PURPOSE OF INCOME TAX IMPOSED BY
THE STATE OR ANY POLITICAL SUBDIVISION THEREOF.
7. THE COMMISSION SHALL PROTECT THE CONFIDENCES AND SECRETS OF
CLIENTS. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, NO
RECORD OR REPORT SHALL BE DEEMED DEFICIENT BECAUSE OF THE OMISSION OF
INFORMATION, THE PROVISION OF WHICH WOULD RESULT IN THE DISCLOSURE OF
SUCH CONFIDENCES OR SECRETS, OR WOULD OTHERWISE COMPROMISE THE INTEREST
OF ANY CLIENT.
8. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE
COMMISSION SHALL BE EXEMPT FROM THE APPLICATION OF ANY PROVISION OF
ARTICLES SIX AND SEVEN OF THE PUBLIC OFFICERS LAW.
S 499-E. PUBLIC DEFENSE COMMISSION; APPOINTMENTS AND QUALIFICATIONS.
1. THE COMMISSION SHALL BE COMPOSED OF THIRTEEN MEMBERS WHO SHALL BE
SELECTED WITH REGARD FOR THE GEOGRAPHIC, RACIAL, ETHNIC AND GENDER MAKE-
UP OF THE STATE AND THE CULTURAL DIVERSITY OF THE STATE'S PUBLIC DEFENSE
A. 8793 4
CLIENTS. A PERSON APPOINTED TO THE COMMISSION MUST HAVE A DEMONSTRABLE
COMMITMENT TO QUALITY REPRESENTATION OF LOWER INCOME PEOPLE, TO IMPROV-
ING THE PUBLIC DEFENSE SYSTEM AND TO THE PRINCIPLE OF INDEPENDENCE OF
THE DEFENSE FUNCTION. WHILE SERVING ON THE COMMISSION, NO MEMBER OF THE
COMMISSION SHALL BE A JUDGE, PROSECUTOR, PUBLIC DEFENSE PROVIDER, LAW
ENFORCEMENT OFFICER, COUNTY ATTORNEY, ATTORNEY GENERAL, UNITED STATES
ATTORNEY, OR EMPLOYEE THEREOF, OR A FULL TIME EMPLOYEE OF THE STATE OR
ANY POLITICAL SUBDIVISION, OR OF ANY BOARD, COMMISSION, AGENCY OR
AUTHORITY OF THE STATE OR ANY POLITICAL SUBDIVISION THEREOF.
2. THE MEMBERS OF THE COMMISSION SHALL BE APPOINTED BY THE GOVERNOR AS
FOLLOWS:
A. THREE ATTORNEYS WITH A DEMONSTRABLE COMMITMENT TO IMPROVING THE
QUALITY OF PUBLIC DEFENSE REPRESENTATION FROM NOMINEES SUBMITTED BY THE
CHIEF JUDGE OF THE NEW YORK STATE COURT OF APPEALS AS FOLLOWS:
(I) ONE FROM NOT LESS THAN THREE NOMINEES WITH SUBSTANTIAL EXPERIENCE
IN THE HANDLING OF CRIMINAL TRIALS OR APPEALS;
(II) ONE FROM NOT LESS THAN THREE NOMINEES WITH SUBSTANTIAL EXPERIENCE
IN THE HANDLING OF FAMILY-RELATED TRIALS OR APPEALS; AND
(III) ONE FROM NOT LESS THAN THREE NOMINEES DRAWN FROM A LIST OF INDI-
VIDUALS RECOMMENDED TO THE CHIEF JUDGE BY THE DEANS OF THE STATE'S LAW
SCHOOLS;
B. ONE ATTORNEY WITH A DEMONSTRABLE COMMITMENT TO IMPROVING THE QUALI-
TY OF PUBLIC DEFENSE REPRESENTATION FROM NOT LESS THAN THREE NOMINEES
SUBMITTED BY THE TEMPORARY PRESIDENT OF THE STATE SENATE;
C. ONE ATTORNEY WITH A DEMONSTRABLE COMMITMENT TO IMPROVING THE QUALI-
TY OF PUBLIC DEFENSE REPRESENTATION FROM NOT LESS THAN THREE NOMINEES
SUBMITTED BY THE SPEAKER OF THE STATE ASSEMBLY;
D. ONE ATTORNEY WITH A DEMONSTRABLE COMMITMENT TO IMPROVING THE QUALI-
TY OF PUBLIC DEFENSE REPRESENTATION WHO HAS SUBSTANTIAL EXPERIENCE IN
THE DELIVERY OF PUBLIC DEFENSE SERVICES FROM NOT LESS THAN THREE NOMI-
NEES SUBMITTED BY THE MINORITY LEADER OF THE STATE SENATE;
E. ONE ATTORNEY WITH A DEMONSTRABLE COMMITMENT TO IMPROVING THE QUALI-
TY OF PUBLIC DEFENSE REPRESENTATION WHO HAS SUBSTANTIAL EXPERIENCE IN
ADULT RESPONDENT REPRESENTATION IN FAMILY COURT FROM NOT LESS THAN THREE
NOMINEES SUBMITTED BY THE MINORITY LEADER OF THE STATE ASSEMBLY;
F. ONE ATTORNEY IN PRIVATE PRACTICE WITH A DEMONSTRABLE COMMITMENT TO
IMPROVING THE QUALITY OF PUBLIC DEFENSE REPRESENTATION FROM NOT LESS
THAN THREE NOMINEES SUBMITTED BY THE NEW YORK STATE BAR ASSOCIATION;
G. ONE PERSON WITH A DEMONSTRABLE COMMITMENT TO IMPROVING THE QUALITY
OF PUBLIC DEFENSE REPRESENTATION FROM NOT LESS THAN THREE NOMINEES
SUBMITTED BY THE NEW YORK STATE DEFENDERS ASSOCIATION;
H. ONE PERSON WITH A DEMONSTRABLE COMMITMENT TO IMPROVING THE QUALITY
OF PUBLIC DEFENSE REPRESENTATION FROM NOT LESS THAN THREE NOMINEES
SUBMITTED BY THE NEW YORK STATE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS;
I. ONE PERSON WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES ON
BEHALF OF A RACIAL MINORITY POPULATION IN NEW YORK FROM NOT LESS THAN
THREE NOMINEES SUBMITTED BY THE NAACP LEGAL DEFENSE AND EDUCATIONAL
FUND;
J. ONE PERSON WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES ON
BEHALF OF A RACIAL MINORITY POPULATION IN NEW YORK FROM NOT LESS THAN
THREE NOMINEES SUBMITTED BY THE LATINO JUSTICE PUERTO RICAN LEGAL
DEFENSE AND EDUCATION FUND; AND
K. ONE PERSON WITH EXPERIENCE AS A CONSUMER OF PUBLIC DEFENSE SERVICES
WHO, HAVING BEEN EXONERATED OR HAVING PAID HIS OR HER DEBT TO SOCIETY BY
SERVICE OF A SENTENCE, HAS DEMONSTRATED A COMMITMENT TO THE IMPROVEMENT
A. 8793 5
OF LEGAL SERVICES FOR THOSE UNABLE TO AFFORD COUNSEL FROM NOT LESS THAN
THREE NOMINEES SUBMITTED BY THE FORTUNE SOCIETY.
3. THE APPOINTMENT OF MEMBERS OF THE COMMISSION SHALL BE COMPLETED
WITHIN SIXTY DAYS OF THE EFFECTIVE DATE OF THIS ARTICLE.
S 499-F. PUBLIC DEFENSE COMMISSION; TERMS OF OFFICE; DESIGNATION OF
CHAIRPERSON; RE-APPOINTMENT; VACANCIES AND COMPENSATION. 1. MEMBERS OF
THE COMMISSION SHALL SERVE TERMS OF FOUR YEARS; PROVIDED, HOWEVER, THAT
THE MEMBERS INITIALLY APPOINTED SHALL SERVE THE FOLLOWING TERMS: A. THE
THREE MEMBERS APPOINTED PURSUANT TO PARAGRAPHS I, J, AND K OF SUBDIVI-
SION TWO OF SECTION FOUR HUNDRED NINETY-NINE-E OF THIS ARTICLE, ONE
YEAR; B. THE THREE MEMBERS APPOINTED PURSUANT TO SUBPARAGRAPHS (II) AND
(III) OF PARAGRAPH A AND PARAGRAPH F OF SUBDIVISION TWO OF SECTION FOUR
HUNDRED NINETY-NINE-E OF THIS ARTICLE, TWO YEARS; C. THE THREE MEMBERS
APPOINTED PURSUANT TO SUBPARAGRAPH (I) OF PARAGRAPH A AND PARAGRAPHS G
AND H OF SUBDIVISION TWO OF SECTION FOUR HUNDRED NINETY-NINE-E OF THIS
ARTICLE, THREE YEARS; AND D. THE FOUR MEMBERS APPOINTED PURSUANT TO
PARAGRAPHS B, C, D AND E OF SUBDIVISION TWO OF SECTION FOUR HUNDRED
NINETY-NINE-E OF THIS ARTICLE, FOUR YEARS.
2. MEMBERS OF THE COMMISSION SHALL SELECT BY MAJORITY VOTE A CHAIR-
PERSON FROM AMONG THEIR RANKS FOR A TERM OF TWO YEARS.
3. MEMBERS OF THE COMMISSION MAY BE RE-APPOINTED TO ADDITIONAL TERMS
AND SHALL SERVE UNTIL THEIR SUCCESSORS ARE APPOINTED.
4. VACANCIES ON THE COMMISSION SHALL BE FILLED PROMPTLY AND FOR THE
REMAINDER OF THE TERM IN THE MANNER PROVIDED FOR BY THE ORIGINAL
APPOINTMENT.
5. MEMBERS OF THE COMMISSION SHALL SERVE WITHOUT PAY BUT SHALL BE
REIMBURSED FOR THEIR REASONABLE, ACTUAL AND NECESSARY EXPENSES INCURRED
IN THE PERFORMANCE OF THEIR DUTIES.
S 499-G. PUBLIC DEFENSE COMMISSION; GENERAL POWERS, DUTIES AND RESPON-
SIBILITIES. THE COMMISSION SHALL HAVE THE POWER, DUTY AND RESPONSIBIL-
ITY:
1. COMMENCING APRIL FIRST, TWO THOUSAND TWELVE, AND IN ACCORDANCE WITH
THE STRATEGIC PLAN PROMULGATED PURSUANT TO SUBDIVISION FOUR OF THIS
SECTION, TO OVERSEE AND ADMINISTER ALL PUBLIC DEFENSE SERVICES IN THE
STATE THROUGH THE COMBINED APPLICATION OF SUCH STATE FUNDS AS MAY BE
APPROPRIATED THEREFOR AND FIXED ANNUAL LOCAL OFFSET CONTRIBUTION MONIES
AS DESCRIBED IN SECTION FOUR HUNDRED NINETY-NINE-M OF THIS ARTICLE,
INCLUDING BUT NOT LIMITED TO MONIES FROM THE INDIGENT LEGAL SERVICES
FUND;
2. TO ENGAGE IN AN EVALUATION OF EXISTING PUBLIC DEFENSE SYSTEMS AND
SERVICE PROVIDERS IN THE STATE BASED ON THE "STANDARDS FOR PROVIDING
MANDATED REPRESENTATION" AS ADOPTED BY THE NEW YORK STATE BAR ASSOCI-
ATION'S HOUSE OF DELEGATES AND THE "STANDARDS FOR PROVIDING CONSTITU-
TIONALLY AND STATUTORILY MANDATED LEGAL REPRESENTATION IN NEW YORK
STATE" AS ADOPTED BY THE NEW YORK STATE DEFENDERS ASSOCIATION'S BOARD OF
DIRECTORS, AND SUCH OTHER STATE AND NATIONAL STANDARDS AS THE COMMISSION
DEEMS APPROPRIATE, AND DEVELOP AND OVERSEE A SELF-EVALUATION PROCESS FOR
EXISTING PUBLIC DEFENSE PROVIDERS;
3. TO CALCULATE THE COST OF PUBLIC DEFENSE SERVICES, INCLUDING BUT NOT
LIMITED TO THE TOTAL ACTUAL COST OF THE CURRENT SYSTEM FOR PROVIDING
SUCH SERVICES; THE PROJECTED COST WHEN THE SYSTEM IS SUBJECTED TO MEAN-
INGFUL ECONOMIES OF SCALE, REDUCTION OF WASTE, AND ELIMINATION OF DUPLI-
CATION; AND THE PROJECTED ADDITIONAL COSTS REQUIRED TO ENSURE COMPLIANCE
WITH NATIONAL, ETHICAL AND STATE PROFESSIONAL STANDARDS AND BEST PRAC-
TICES;
A. 8793 6
4. IN CONSULTATION WITH THE ADVISORY COMMITTEE ESTABLISHED PURSUANT TO
SUBDIVISION EIGHT OF THIS SECTION AND THE FINANCING TRANSITION ADVISORY
COUNCIL ESTABLISHED BY SECTION FOUR HUNDRED NINETY-NINE-K OF THIS ARTI-
CLE, TO PROMULGATE A STRATEGIC PLAN FOR THE ADMINISTRATION AND FUNDING
OF TRIAL, APPELLATE, FAMILY AND CONFLICT PUBLIC DEFENSE SERVICES
THROUGHOUT THE STATE. SUCH PLAN SHALL BE CONSISTENT WITH THE PROVISIONS
AND FURTHER THE PURPOSES OF THIS ARTICLE AND SHALL, AT A MINIMUM,
PROVIDE FOR: A. THE DESIGNATION OF GEOGRAPHIC REGIONS TO ALLOW FOR THE
MORE EFFICIENT AND EFFECTIVE PROVISION OF PUBLIC DEFENSE SERVICES,
PROVIDED, HOWEVER, THAT REGIONS ENCOMPASSING MULTIPLE COUNTIES SHALL
INCLUDE AT LEAST ONE STAFFED OFFICE IN EACH COUNTY SO AS TO PROVIDE
ADEQUATE ACCESS BY CLIENTS TO PUBLIC DEFENSE SERVICES; B. THE AUTHORITY
OF THE COMMISSION TO CONTRACT WITH NOT-FOR-PROFIT PUBLIC DEFENSE SERVICE
PROVIDERS TO PROVIDE PUBLIC DEFENSE SERVICES TO CLIENTS; AND C. THE
AUTHORITY OF THE COMMISSION TO DIRECTLY EMPLOY CRIMINAL DEFENSE ATTOR-
NEYS, INVESTIGATORS AND OTHER PROFESSIONAL AND SUPPORT STAFF TO PROVIDE
PUBLIC DEFENSE SERVICES TO CLIENTS.
5. COMMENCING TWELVE MONTHS AFTER THE EFFECTIVE DATE OF THIS ARTICLE
AND UNTIL MARCH THIRTY-FIRST, TWO THOUSAND TWELVE, WHERE THE COMMISSION
DEEMS IT APPROPRIATE, TO ENTER INTO AN AGREEMENT WITH ANY COUNTY THAT
SEEKS TO DISCONTINUE ITS PLAN FOR PROVIDING COUNSEL AND RELATED SERVICES
PURSUANT TO ARTICLE EIGHTEEN-B OF THE COUNTY LAW IN ACCORDANCE WITH THE
PROVISIONS OF SUBDIVISION SIX OF SECTION SEVEN HUNDRED TWENTY-TWO OF THE
COUNTY LAW;
6. TO ADOPT PROCEDURES FOR THE IMPLEMENTATION OF SUBDIVISION SIX OF
SECTION SEVEN HUNDRED TWENTY-TWO OF THE COUNTY LAW;
7. TO ESTABLISH THE QUALIFICATIONS, DUTIES AND COMPENSATION FOR THE
STAFF OF THE COMMISSION AND APPOINT THE STATE DEFENDER IN ACCORDANCE
WITH SECTION FOUR HUNDRED NINETY-NINE-H OF THIS ARTICLE, AND CONFLICT
DEFENDER, IF ANY;
8. TO ESTABLISH AN ADVISORY COMMITTEE WHOSE MEMBERS SHALL INCLUDE
PUBLIC DEFENSE PROVIDERS, REPRESENTATIVES FROM VOLUNTARY ORGANIZATIONS
SUCH AS BAR ASSOCIATIONS, OTHER CRIMINAL JUSTICE PROFESSIONALS, AND
CLIENT COMMUNITY REPRESENTATIVES TO ADVISE THE COMMISSION ABOUT DEFI-
CIENCIES IN PUBLIC DEFENSE SERVICES, POTENTIAL WAYS TO CORRECT THOSE
DEFICIENCIES AND THE COMMISSION'S OVERSIGHT AND PLANNING FUNCTIONS;
9. SUBJECT TO THE PROHIBITION SET FORTH IN SECTION FOUR HUNDRED NINE-
TY-NINE-L OF THIS ARTICLE, TO ESTABLISH AND ENFORCE STATEWIDE STANDARDS
FOR PUBLIC DEFENSE SERVICES TO ENSURE THAT QUALITY REPRESENTATION IS
PROVIDED BY COMPETENT COUNSEL IN A MANNER THAT IS ZEALOUS, FAIR AND
CONSISTENT THROUGHOUT THE STATE. SUCH STANDARDS SHALL REFLECT NATIONAL
AND STATE PROFESSIONAL GUIDELINES AND BEST PRACTICES;
10. TO PREPARE REPORTS, IN CONJUNCTION WITH THE STATE DEFENDER, WHICH
SHALL INCLUDE DETAILED EXPENDITURE AND CASELOAD DATA, DESCRIBE, EVALUATE
AND ANALYZE THE NEEDS OF THE PUBLIC DEFENSE SYSTEM AND MAKE RECOMMENDA-
TIONS FOR STATUTORY CHANGES, INCLUDING CHANGES IN THE CRIMINAL PROCEDURE
LAW, THE PENAL LAW, THE FAMILY COURT ACT, AND RELATED STATUTES AND COURT
RULES WHICH MAY BE APPROPRIATE FOR THE IMPROVEMENT OF THE ADMINISTRATION
OF JUSTICE, THE REHABILITATION AND RE-ENTRY OF OFFENDERS AND OTHER
RELATED OBJECTIVES. COMMENCING IN TWO THOUSAND TEN, ONE SUCH REPORT
SHALL BE SUBMITTED ON OR BEFORE THE FIFTEENTH DAY OF SEPTEMBER OF EACH
YEAR TO THE GOVERNOR, THE TEMPORARY PRESIDENT OF THE STATE SENATE, THE
SPEAKER OF THE STATE ASSEMBLY, THE RESPECTIVE MINORITY LEADERS OF BOTH
HOUSES, THE CHIEF JUDGE OF THE COURT OF APPEALS AND THE CHIEF ADMINIS-
TRATIVE JUDGE OF THE UNIFIED COURT SYSTEM; AND
A. 8793 7
11. TO PROPOSE SUCH AMENDMENTS TO EXISTING LAW AS MAY BE NECESSARY AND
APPROPRIATE TO EFFECTUATE THE PROVISIONS AND INTENT OF THIS ARTICLE AND
DO ALL THINGS NECESSARY, CONVENIENT OR DESIRABLE, INCLUDING ANCILLARY
AND INCIDENTAL ACTIVITIES, TO CARRY OUT ITS PURPOSES AND FOR THE EXER-
CISE OF THE POWERS GRANTED IN THIS ARTICLE.
S 499-H. STATE DEFENDER. 1. THE STATE DEFENDER APPOINTED PURSUANT TO
SUBDIVISION SEVEN OF SECTION FOUR HUNDRED NINETY-NINE-G OF THIS ARTICLE
SHALL BE AN ATTORNEY, SHALL SERVE AS THE CHIEF EXECUTIVE OFFICER OF THE
COMMISSION, SHALL HAVE THE AUTHORITY, IN CONSULTATION WITH THE COMMIS-
SION, TO HIRE ATTORNEYS AND OTHER STAFF AND TO TAKE ALL OTHER SUCH
ACTIONS AS THE STATE DEFENDER AND THE COMMISSION DEEM NECESSARY TO CARRY
OUT THE PURPOSES OF THIS ARTICLE. IN ADDITION, THE STATE DEFENDER SHALL
HAVE COMPLETE AUTHORITY, TO THE EXCLUSION OF ALL OTHERS, TO SUPERVISE
THE PERSONNEL OF THE COMMISSION EXCEPT FOR THE CONFLICT DEFENDER, IF
ANY, AND RELATED CONFLICT STAFF WITH REGARD TO CASE-RELATED MATTERS.
2. SALARY. A. THE SALARY OF THE STATE DEFENDER SHALL NOT BE LESS THAN
THE COMPENSATION SET FOR THE HIGHEST PAID DISTRICT ATTORNEY IN THE
STATE.
B. ALL STAFF MEMBERS EMPLOYED BY THE COMMISSION UNDER THIS ARTICLE ARE
ENTITLED TO FULL SALARIES, WAGES, BENEFITS AND PROMOTIONAL OPPORTUNITIES
AS ACCORDED TO OTHER FULL-TIME STATE EMPLOYEES AND/OR MANAGEMENT CONFI-
DENTIAL EMPLOYEES OF THE STATE OF NEW YORK.
C. THE COMMISSION SHALL DEVELOP A PLAN TO ESTABLISH FOR PUBLIC DEFENSE
PROVIDERS NOT LESS THAN COMPARABLE RATES FOR COMPARABLE POSITIONS WITHIN
THE DISTRICT ATTORNEYS OFFICES OR WITHIN THAT OF OTHER GOVERNMENTAL
ADVERSARIES.
S 499-I. ASSISTANCE BY STATE OFFICES, DEPARTMENTS, BOARDS, DIVISIONS
AND COMMISSIONS AND FROM LOCALITIES AND PUBLIC DEFENSE PROVIDERS. AT THE
REQUEST OF THE COMMISSION, ALL OTHER STATE OFFICES, DEPARTMENTS, BOARDS,
DIVISIONS AND COMMISSIONS, LOCALITIES AND PUBLIC DEFENSE PROVIDERS SHALL
RENDER SUCH INFORMATION, ASSISTANCE AND COOPERATION AS SHALL BE WITHIN
THEIR LEGAL AUTHORITY IN FURTHERANCE OF THE PURPOSES OF THIS ARTICLE.
S 499-J. INDEPENDENCE; FISCAL DISCIPLINE. THE COMMISSION, WHILE MAIN-
TAINING THE INDEPENDENCE OF THE DEFENSE FUNCTION, PROTECTING THE CONFI-
DENTIALITY OF CLIENT RECORD KEEPING, AND ASSURING THE INTEGRITY OF
PROCEDURES SUPPORTING THE REPRESENTATION OF PUBLIC DEFENSE CLIENTS,
SHALL, IN CONSULTATION WITH THE DIVISION OF THE BUDGET AND THE FINANCING
TRANSITION ADVISORY COUNCIL ESTABLISHED BY SECTION FOUR HUNDRED NINETY-
NINE-K OF THIS ARTICLE, ADOPT SUCH POLICIES AND PROCEDURES AS MAY BE
NECESSARY AND APPROPRIATE TO ENSURE THAT THE COMMISSION OPERATES WITH A
DEGREE OF FISCAL DISCIPLINE AND ACCOUNTABILITY COMPARABLE TO THAT
REQUIRED OF EXECUTIVE AND OTHER AGENCIES OF THE STATE.
S 499-K. FINANCING TRANSITION ADVISORY COUNCIL TO THE COMMISSION. 1.
THERE SHALL BE ESTABLISHED FOR A PERIOD OF THREE YEARS A FINANCING TRAN-
SITION ADVISORY COUNCIL CONSISTING OF FIFTEEN MEMBERS TO BE APPOINTED BY
THE GOVERNOR TO SERVE AS AN ADVISORY BODY TO THE COMMISSION IN ACCORD-
ANCE WITH THE PROVISIONS OF THIS SECTION. EIGHT OF THE MEMBERS SHALL BE
APPOINTED ON THE BASIS OF THEIR PROFESSIONAL KNOWLEDGE OF THE WORKINGS
OF COUNTY OR CITY GOVERNMENT, THEIR EXPERIENCE AS A COUNTY OFFICIAL IN
THE PROVISION OF COUNTY SERVICES, THEIR EXPERIENCE AS AN OFFICIAL OR
STAFF MEMBER OF THE NEW YORK STATE ASSOCIATION OF COUNTIES OR OTHERWISE
ON THE BASIS OF THEIR ADVOCACY FOR THE RIGHTS AND INTERESTS OF LOCALI-
TIES. AT LEAST FIVE OF THE MEMBERS SHALL BE APPOINTED ON THE BASIS OF
THEIR EXPERIENCE IN THE ADMINISTRATION OF STATE AID TO LOCALITIES, THEIR
PROFESSIONAL KNOWLEDGE OF THE METHODS AND PRACTICES OF THE NEW YORK
STATE DIVISION OF THE BUDGET, THEIR EXPERIENCE IN DESIGNING STATE AID
A. 8793 8
PROGRAMS, THEIR EXPERTISE IN DESIGNING AND CALCULATING REVENUE STREAMS,
OR SIMILAR STATE BUDGET EXPERTISE. IN MAKING SUCH APPOINTMENTS, THE
GOVERNOR SHALL ENDEAVOR TO INSURE THAT THE OVERALL MEMBERSHIP OF THE
COUNCIL ADEQUATELY REFLECTS THE RURAL, SUBURBAN AND URBAN AREAS OF THE
STATE.
2. MEMBERS OF THE COUNCIL SHALL BE APPOINTED FOR A TERM OF THREE
YEARS. VACANCIES SHALL BE FILLED IN THE SAME MANNER AS ORIGINAL
APPOINTMENTS FOR THE REMAINDER OF ANY UNEXPIRED TERM.
3. THE GOVERNOR SHALL DESIGNATE ONE MEMBER OF THE COUNCIL AS ITS CHAIR
TO SERVE AS SUCH AT THE PLEASURE OF THE GOVERNOR.
4. COUNCIL MEMBERS SHALL NOT RECEIVE COMPENSATION, BUT EACH MEMBER
SHALL BE ENTITLED TO RECEIVE HIS OR HER REASONABLE AND NECESSARY
EXPENSES INCURRED IN CONNECTION WITH HIS OR HER SERVICES AS A MEMBER
WITHIN THE AMOUNTS APPROPRIATED THEREFOR.
5. THE COUNCIL SHALL HAVE AN EXECUTIVE SECRETARY DESIGNATED BY THE
CHAIR OF THE COMMISSION. THE CHAIR OF THE COMMISSION MAY ALSO ASSIGN
SUCH OTHER COMMISSION OFFICERS AND EMPLOYEES AS THE COMMISSION DEEMS
PRUDENT TO ASSIST THE COUNCIL IN THE PERFORMANCE OF ITS DUTIES.
6. THE COUNCIL SHALL ADVISE AND ASSIST THE COMMISSION IN DEVELOPING
POLICIES, PLANS AND PROGRAMS TO CARRY OUT A SEAMLESS TRANSITION FROM A
PRIMARILY LOCALLY-FUNDED PUBLIC DEFENSE SYSTEM TO A PRIMARILY
STATE-FUNDED PUBLIC DEFENSE SYSTEM ADMINISTERED EXCLUSIVELY BY THE
COMMISSION. THE COUNCIL MAY CONSIDER ANY MATTER RELATED TO ENSURING THAT
THE LONG-TERM RELATIONSHIP BETWEEN THE STATE AND LOCALITIES REGARDING
THE ADMINISTRATION OF PUBLIC DEFENSE SERVICES BE EQUITABLE, TRANSPARENT,
FAIR AND PERMANENT AND SHALL ADVISE THE COMMISSION ON ANY SUCH MATTER,
INCLUDING BUT NOT LIMITED TO:
A. DEVISING A FAIR AND EQUITABLE FORMULA FOR FIXING AND PERMANENTLY
CAPPING OFFSET CONTRIBUTIONS BY LOCALITIES TO THE TOTAL COST OF PROVID-
ING PUBLIC DEFENSE SERVICES, WHICH FORMULA SHALL, IF ADOPTED BY THE
COMMISSION, BECOME EFFECTIVE NO EARLIER THAN TWO THOUSAND TWENTY-TWO.
SUCH FORMULA SHOULD, AT A MINIMUM, ADDRESS AND CORRECT CURRENT INEQUI-
TIES IN THE COMPARATIVE NET LOCAL EXPENDITURES MADE BY COUNTIES HISTOR-
ICALLY AND CURRENTLY IN PROVIDING SERVICES PURSUANT TO ARTICLE EIGH-
TEEN-B OF THE COUNTY LAW, AND INCLUDE RECOMMENDATIONS FOR METHODS TO
ASSURE COUNTIES OF THE BONA FIDES OF THE STATE IN ITS LONG-TERM CAPPING
OF THE FISCAL LIABILITY OF LOCALITIES;
B. IDENTIFICATION OF INDIRECT COSTS NOW BORNE BY COUNTIES WHICH SHOULD
BECOME STATE CHARGES AT THE TIME OF THE COMMISSION'S ASSUMPTION OF
RESPONSIBILITY FOR THE PUBLIC DEFENSE SYSTEM; AND
C. SUCH OTHER MATTERS AS THE COUNCIL DEEMS NECESSARY TO CONSIDER OR
THE COMMISSION OR THE DIVISION OF THE BUDGET MAY REQUEST THAT IT CONSID-
ER.
7. THE COUNCIL SHALL MEET AT THE REQUEST OF ITS CHAIR OR THE CHAIR OF
THE COMMISSION AS NECESSARY BUT IN NO EVENT LESS THAN FOUR TIMES PER
YEAR.
S 499-L. ENFORCEMENT OF STANDARDS; PROHIBITION. NOTWITHSTANDING ANY
PROVISION OF LAW TO THE CONTRARY, THE COMMISSION SHALL HAVE NO POWER OR
AUTHORITY TO IMPOSE, ENFORCE OR OTHERWISE REQUIRE COMPLIANCE BY ANY
LOCALITY OR PUBLIC DEFENSE SERVICE PROVIDER WITH ANY STANDARDS, INCLUD-
ING BUT NOT LIMITED TO STANDARDS RELATING TO ATTORNEY CASELOADS, ETHICS,
PROFESSIONAL TRAINING AND CLIENT ELIGIBILITY FOR PUBLIC DEFENSE
SERVICES, UNTIL SUCH TIME AS THE COMMISSION, IN ACCORDANCE WITH SUBDIVI-
SION ONE OF SECTION FOUR HUNDRED NINETY-NINE-G OF THIS ARTICLE, HAS
ASSUMED COMPLETE RESPONSIBILITY FOR THE OVERSIGHT AND ADMINISTRATION OF
PUBLIC DEFENSE SERVICES IN THE STATE.
A. 8793 9
S 499-M. ELIMINATION OF LOCAL RESPONSIBILITY FOR PUBLIC DEFENSE
SERVICES; FIXED ANNUAL LOCAL OFFSET CONTRIBUTION. 1. NOTWITHSTANDING ANY
PROVISION OF LAW TO THE CONTRARY, EACH LOCALITY IN THE STATE SHALL BE
PERMANENTLY RELIEVED OF THE OBLIGATION TO PROVIDE AND ADMINISTER PUBLIC
DEFENSE SERVICES, AND THE ADMINISTRATION OF SUCH SERVICES SHALL BECOME
SOLELY A STATE OBLIGATION AND CHARGE SUBJECT ONLY TO A FIXED OFFSET
CONTRIBUTION TO BE PAID ANNUALLY BY EACH LOCALITY TO THE INDIGENT LEGAL
SERVICES FUND TO THE CREDIT OF THE COMMISSION WHICH SHALL ADMINISTER
SUCH SERVICES IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE; 2. THE
AGGREGATE OFFSET SHALL BE IN THE AMOUNT OF THREE HUNDRED THIRTY-NINE
MILLION DOLLARS AND LOCALITIES SHALL BE OBLIGATED TO PAY, ON AN ANNUAL
BASIS, A PERCENTAGE OF THAT AMOUNT BASED ON THE AVERAGE OF THE PERCENT-
AGES OF TOTAL NET LOCAL EXPENDITURES MADE BY THEM BETWEEN TWO THOUSAND
TWO AND TWO THOUSAND EIGHT AS CALCULATED BY THE OFFICE OF THE STATE
COMPTROLLER IN THE ADMINISTRATION OF THE INDIGENT LEGAL SERVICES FUND;
PROVIDED HOWEVER, THAT (A) IN ACCORDANCE WITH PARAGRAPH A OF SUBDIVISION
SIX OF SECTION FOUR HUNDRED NINETY-NINE-K OF THIS ARTICLE, THE COMMIS-
SION MAY, COMMENCING IN TWO THOUSAND TWENTY-TWO, ADOPT AND IMPLEMENT A
REVISED FIXED ANNUAL LOCAL OFFSET CONTRIBUTION AMOUNT FOR EACH LOCALITY
BASED ON THE FORMULA RECOMMENDED TO THE COMMISSION BY THE FINANCING
TRANSITION ADVISORY COUNCIL; AND (B) THE AGGREGATE AMOUNT OF ANY SUCH
REVISED FIXED ANNUAL LOCAL OFFSET CONTRIBUTIONS SHALL NOT EXCEED THREE
HUNDRED THIRTY-NINE MILLION DOLLARS.
S 2. Section 722 of the county law is amended by adding a new subdivi-
sion 6 to read as follows:
6. DISCONTINUANCE OF PLAN AT COUNTY REQUEST. (A) REQUEST TO PUBLIC
DEFENSE COMMISSION. NOTWITHSTANDING ANY PROVISION OF THIS ARTICLE OR
ARTICLE EIGHTEEN-A OF THIS CHAPTER TO THE CONTRARY, THE CHIEF ADMINIS-
TRATIVE OFFICER OF A COUNTY OTHER THAN A COUNTY WHOLLY CONTAINED WITHIN
A CITY MAY, WITH THE APPROVAL OF THE GOVERNING BOARD OF SUCH COUNTY AND
IN ACCORDANCE WITH APPLICABLE PROCEDURES PROMULGATED BY THE NEW YORK
STATE PUBLIC DEFENSE COMMISSION ESTABLISHED PURSUANT TO ARTICLE
FIFTEEN-A OF THE JUDICIARY LAW, REQUEST SUCH COMMISSION TO ASSUME FULL
RESPONSIBILITY FOR PROVIDING COUNSEL AND RELATED SERVICES PURSUANT TO
THIS ARTICLE TO PERSONS CHARGED WITH A CRIME OR OTHERWISE ENTITLED TO
ASSIGNMENT OF COUNSEL PURSUANT TO THIS SECTION. (B) GRANTING OF REQUEST;
ASSUMPTION OF RESPONSIBILITIES. WHERE, UPON SUCH TERMS AS MAY BE AGREED
TO BY SUCH COUNTY AND THE COMMISSION, RESPONSIBILITY FOR PROVIDING COUN-
SEL AND RELATED SERVICES PURSUANT TO THIS SUBDIVISION IS TRANSFERRED TO
AND ASSUMED BY THE COMMISSION, SUCH COUNTY SHALL DISCONTINUE THE PLAN
PLACED IN OPERATION PURSUANT TO THIS SECTION, WHEREUPON THE COST FOR
PROVIDING COUNSEL AND ALL SERVICES OTHER THAN COUNSEL PURSUANT TO
SECTION SEVEN HUNDRED TWENTY-TWO-C OF THIS ARTICLE SHALL BECOME SOLELY A
COMMISSION CHARGE; PROVIDED, HOWEVER THAT SUCH COUNTY, DURING THE PERIOD
OF SUCH DISCONTINUANCE AND IN ACCORDANCE WITH THE TERMS OF SUCH AGREE-
MENT, SHALL PAY TO THE INDIGENT LEGAL SERVICES FUND ESTABLISHED PURSUANT
TO SECTION NINETY-EIGHT-B OF THE STATE FINANCE LAW AN ANNUAL AGREED UPON
DISCONTINUANCE OFFSET CONTRIBUTION TO THE CREDIT OF THE COMMISSION.
NOTHING CONTAINED IN THIS SUBDIVISION SHALL BE DEEMED TO PRECLUDE THE
SUBMISSION OF A JOINT REQUEST TO THE COMMISSION BY TWO OR MORE COUNTIES
PURSUANT TO THIS SUBDIVISION.
S 3. Articles 18-A and 18-B of the county law are REPEALED.
S 4. Subdivisions 3 and 4 of section 98-b of the state finance law,
subdivision 3 as amended by section 1 of part H of chapter 56 of the
laws of 2004, paragraph (b) of subdivision 3 as amended by section 1 of
part G of chapter 56 of the laws of 2005 and subdivision 4 as added by
A. 8793 10
section 12 of part J of chapter 62 of the laws of 2003, are amended to
read as follows:
3. (a) As provided in this subdivision, moneys received by the indi-
gent legal services fund each calendar year from January first through
December thirty-first shall be made available by the state comptroller
in the immediately succeeding calendar year to (i) assist [counties and,
in the case of a county wholly contained within a city, such city,] THE
STATE in providing legal representation [for persons who are financially
unable to afford counsel pursuant to article eighteen-B of the county
law] PURSUANT TO THE PUBLIC DEFENSE ACT OF 2009; and (ii) assist the
state, in funding representation provided by assigned counsel paid in
accordance with section thirty-five of the judiciary law. Moneys from
the fund shall be distributed at the direction of the state comptroller
in accordance with the provisions of this subdivision.
(b) (i) Commencing on March thirty-first, two thousand five, moneys
from such fund shall first be made available, in the calendar year next
succeeding the calendar year in which collected, to reimburse the state
for payments, made in the previous calendar year, for assigned counsel
paid in accordance with section thirty-five of the judiciary law, up to
an annual sum of twenty-five million dollars.
(ii) Commencing with the payment on April first, two thousand five or
as soon thereafter as practicable, and subsequent quarterly payments
thereafter, moneys from such fund shall be available to reimburse the
state for providing funding for legal representation in periods and at
rates of compensation in effect after January first, two thousand four
in accordance with section thirty-five of the judiciary law, in an
amount equal to such funding provided during the preceding quarter, less
the amount of funding provided during that quarter in accordance with
such section at rates of compensation in effect immediately prior to
January first, two thousand four, up to but not exceeding six million
two hundred fifty thousand dollars per quarter.
(c) The balance of moneys received by such fund shall be distributed
by the state comptroller, in the calendar year next succeeding the
calendar year in which collected, to [counties and, in the case of a
county wholly contained within a city, such city, to assist such coun-
ties and such city in providing representation pursuant to article eigh-
teen-B of the county law. The amount to be made available each year to
such counties and such city shall be calculated by the state comptroller
as follows:
(i) The county executive or chief executive officer of each county or,
in the case of a county wholly contained within a city, such city shall,
in accordance with subdivision two of section seven hundred twenty-two-f
of the county law, certify to the state comptroller, by March first of
each year, the total expenditure of local funds by each such county or
city, during the period January first through December thirty-first of
the previous calendar year, for providing legal representation to
persons who were financially unable to afford counsel, pursuant to arti-
cle eighteen-B of the county law.
(ii) The state comptroller shall then total the amount of local funds
expended by all such counties and such city to determine the sum of such
moneys expended by all such counties and such city for providing such
representation in such calendar year.
(iii) The state comptroller shall then calculate the percentage share
of the statewide sum of such expenditures for each county and such city
for such calendar year.
(iv) The state comptroller shall then determine:
A. 8793 11
(A) the fund amount available to be distributed pursuant to this para-
graph, which shall be the amount received by the indigent legal services
fund in the immediately preceding calendar year, minus the amount to be
distributed to the state under paragraph (b) of this subdivision
provided, however, that with respect to the first payment made to coun-
ties and such city on March thirty-first, two thousand five, such
payment shall be made from the amounts received by the indigent legal
services fund in the immediately preceding two calendar years, minus the
amount to be distributed to the state under paragraph (b) of this subdi-
vision; and
(B) the annual payment amount to be paid to each county and such city
pursuant to this subdivision, which shall be the product of the percent-
age share of statewide local funds expended by each such county and
city, as determined pursuant to subparagraph (iii) of this paragraph,
multiplied by the fund amount available for distribution, as determined
pursuant to clause (A) of this subparagraph.
(d) All payments from this account shall be made upon vouchers
approved and certified and upon audit and warrant of the state comp-
troller. The state comptroller shall, as soon as practicable, make such
payments to the state and each county and each city in a lump sum
payment] THE PUBLIC DEFENSE COMMISSION CREATED BY THE PUBLIC DEFENSE ACT
OF 2009.
[4. Maintenance of effort. (a) As used in this section, "local funds"
shall mean all funds appropriated or allocated by a county or, in the
case of a county wholly contained within a city, such city, for services
and expenses in accordance with article eighteen-B of the county law,
other than funds received from: (i) the federal government or the state;
or (ii) a private source, where such city or county does not have
authority or control over the payment of such funds by such private
source.
(b) State funds received by a county or city pursuant to subdivision
three of this section shall be used to supplement and not supplant any
local funds which such county or city would otherwise have had to expend
for the provision of counsel and expert, investigative and other
services pursuant to article eighteen-B of the county law. All such
state funds received by a county or city shall be used to improve the
quality of services provided pursuant to article eighteen-B of the coun-
ty law.
(c) Notwithstanding the provisions of any other law, as a precondition
for receiving state assistance pursuant to subdivision three of this
section, a county or city shall be required pursuant to this paragraph
to demonstrate compliance with the maintenance of effort provisions of
paragraph (b) of this subdivision. Such compliance shall be shown as a
part of the annual report submitted by the county or city in accordance
with subdivision two of section seven hundred twenty-two-f of the county
law. Such maintenance of effort shall be shown by demonstrating with
specificity:
(i) that the total amount of local funds expended for services and
expenses pursuant to article eighteen-B of the county law during the
applicable calendar year reporting period did not decrease from the
amount of such local funds expended during the previous calendar year
provided, however, that with respect to the report filed in two thousand
six regarding calendar year two thousand five, such maintenance of
effort shall be shown by demonstrating with specificity that the total
amount of local funds expended for services and expenses pursuant to
article eighteen-B of the county law during the two thousand five calen-
A. 8793 12
dar year did not decrease from the amount of such local funds expended
during calendar year two thousand two; or
(ii) where the amount of local funds expended for such services
decreased over such period, that all state funds received during the
most recent state fiscal year pursuant to subdivision three of this
section were used to assure an improvement in the quality of services
provided in accordance with article eighteen-B of the county law and
have not been used to supplant local funds. For purposes of this subpar-
agraph, whether there has been an improvement in the quality of such
services shall be determined by considering the expertise, training and
resources made available to attorneys, experts and investigators provid-
ing such services; the total caseload handled by such attorneys, experts
and investigators as such relates to the time expended in each case and
the quality of services provided; the system by which attorneys were
matched to cases with a degree of complexity suitable to each attorney's
training and experience; the provision of timely and confidential access
to such attorneys and expert and investigative services; and any other
similar factors related to the delivery of quality public defense
services.]
S 5. This act shall take effect immediately; provided, however, that
section 499-m of the judiciary law, as added by section one of this act,
and the provisions of section three of this act shall take effect April
1, 2012; provided further the provisions of section four of this act
shall take effect January 1, 2012; and, provided further the amendments
to section 722 of the county law made by section two of this act shall
take effect one year after such effective date.