Senate Bill S4091

                                 BILL NUMBER:  S4091

 TITLE OF BILL :
An act to amend the uniform justice court act, in relation to the
right of defendants in misdemeanor or felony cases to have such matter
appear before a judge or justice admitted to practice law in New York


 PURPOSE OR GENERAL IDEA OF BILL :
This bill would give defendants in criminal cases in town and village
justice courts the right to choose to appear in front of a judge who
is a lawyer.

 SUMMARY OF SPECIFIC PROVISIONS :
Section one of the bill adds a new section 105-a to the Uniform
Justice Court Act ("UJCA") entitled "Election to proceed in certain
criminal actions." The new section gives a defendant who has been
charged with a misdemeanor or felony, and who is appearing in a
justice court, the right to proceed before a judge who is a lawyer.
Thus, a defendant may "opt out" of proceeding before a non-attorney
judge in a criminal case. The defendant must make such an election in
writing, on a form to be prescribed by the chief administrator of the
courts, within specified time frames. This legislation would create an
automatic right to have a case reassigned to an attorney judge, as
provided in the first sentence of subdivision (a) of new UJCA § 105-a.
As a result, the current "good cause shown" standard of Criminal
              

Procedure Law ("CPL") 170.25 would no longer have to be met by a
defendant seeking to proceed before a lawyer judge. The newly created
"opt-out" right would only be available after arraignment and before
the making of substantive motions to prevent forum shopping.
Subdivision (c) of the new UJCA § 105-a requires the chief
administrator of the courts to promulgate implementing rules, which
must ensure timely notice to defendants of the right to elect to
proceed before an attorney judge and must also ensure that when such
an election is made, the case is reassigned to an attorney judge in a
timely manner. It is the legislative intent that notice of the "opt
out" right will be given to defendants during arraignment in two ways:
instruction by the judge and through the form used to make the
election, which will also explain the right and how to exercise it.
The text of this bill is substantially the same as that proposed by
the Special Commission on the Future of the New York State Courts in
September 2008. The Commission's report, discussed below, identified a
variety of problems in the local justice court system and proposed a
number of different solutions. Model legislation was included as an
appendix to the report, and the proposed model legislation was divided
into 4 lettered parts, each addressing a different set of issues. This
bill addresses one issue only - the due process concerns that stem
from having non-attorney judges presiding over criminal cases - and
the bill text is contained in section 2 of Part C of the Commission's
proposed Model Legislation.

 JUSTIFICATION :
In late 2006, the Assembly Judiciary and Codes committees held a
public hearing to address reform of the NYS justice courts. The
hearing followed a series of articles in the New York Times that
reported on a variety of problems and alleged abuses by some justices
of the town and village courts. Some of the cases profiled in the NYT
series highlighted the due process and other violations that can
result from non-lawyer justices' lack of familiarity with legal and
ethical rules, especially in criminal cases where liberty interests
are at stake. The debate over the town and village justice courts -
whether they should continue in their present form and whether or not
judges should have to be attorneys admitted to practice, as required
for all other courts in the state - has gone on since at least the
early part of the 20th century. As part of this most recent renewal of
the debate, a special commission established in 2006 by Chief Judge
Judith Kaye issued a report in September 2008 entitled Justice Most
Local: The Future of Town and Village Courts in New York State
(hereinafter referred to as Justice Most Local). The special
commission's report dealt with a wide array of issues, and an appendix
to the report includes proposed model legislation designed to address
those issues. This bill addresses only a single issue: the right of a
criminal defendant, whose liberty is at issue, to proceed in front of
a judge who is a lawyer. After an extensive review of the justice
courts that included visits to courts across the state, meetings with
justices, clerks, prosecutors, public defenders, probation officers
and other local government officials, and four public hearings, the
special commission concluded that "immediate action" was needed to
address, among other things, "due process violations and other legal
errors," Justice Most Local, p. 10. In its summary under the heading

"Safeguarding Due Process Rights," the report said the following about
non-attorney justices: "...  we remain concerned about due process
issues and the legal consequences that can be imposed by justices who
have not received a legal degree.  After extensive debate about the
possible proposals that might address these recurring concerns, we
believe that the simplest and most effective solution is to provide
all defendants...an "opt-out" right to hive his or her case heard by
an attorney judge, at a point after arraignment but before a trial is
scheduled or before substantive motions are made.... We believe that
such an "opt-out" right should address any substantive or due process
concerns, without entirely dismantling a system that has been in place
for hundreds of years. " Justice Most Local, p. 17. This bill
therefore creates such an "opt-out" right, in substantially the same
form proposed by the special commission, as the most practical
compromise that will give defendants the right to have potentially
complex legal issues resolved by lawyer judges without completely
divesting non-attorney justices of criminal jurisdiction.

 PRIOR LEGISLATIVE HISTORY :
New bill.

 FISCAL IMPLICATIONS :
To be determined.

 EFFECTIVE DATE :
This act shall take effect 120 days after it shall have become a law.