BILL NUMBER:S5421

TITLE OF BILL:
An act
to amend the county law, in relation to conflict defense services

PURPOSE:
This bill would clarify language to provide for indigent criminal
conflict cases.

SUMMARY OF PROVISIONS:
Section 1 would add language to Section 722 of the County Law that
sets requirements to governing bodies for their plans to provide
counsel to indigent persons to clarify the manner in which counsel
for criminal conflict cases are furnished.

Section 2 would provide an immediate effective date for this act.

JUSTIFICATION:
In 1962, the United States Supreme Court unanimously held that state
courts are required under the Sixth Amendment of the Constitution to
provide counsel in criminal cases for defendants who are unable to
afford their own attorneys. Pursuant to this requirement, New York
State provided a plan for representation in f 722 of the County Law
that established mechanisms for providing indigent defense counsel.
One of the mechanisms provided for under the law was the assignment
              

of private attorneys pursuant to a plan of a bar association, who
have come to commonly be known as 18-b attorneys, so-named for the
Article of the County Law providing for them.

The 18-b panels that assign attorneys to cases are typically staffed
with veteran attorneys and are associated with the bar association of
the county in which they operate. They are experienced litigations
who provide duality representation to indigent defendants at an
affordable cost to the state. Many of these lawyers have been honored
for their excellent work and Chief Judge Kaye has written a report
detailing the importance of the 18-b program.

In the last few years, the Legislature has enacted several measures to
ensure that indigent defendants are receiving proper representation.
In 2009, a criminal defense case cap for New
York City was enacted that allowed for a four-year implementation
period to decrease the number of cases that each attorney is
responsible to manage. Last year, an Office of Indigent Legal
Services was established. The new office is charged with monitoring,
studying and making recommendations and efforts to improve the
duality of services provided under Article 16-b of the county law.

In addition to the new office, a provision authorizing the
establishment of conflict defender offices through a plan of a bar
association approved by the state administrator using the guidelines
established by the Office of Indigent Legal Services was enacted.
Counties utilizing an office of conflict defender prior to March
31, 2010 may continue to do so. However, upon the completion of
criteria for conflict defender offices by the Office of Indigent


Legal Services, those counties must submit a, plan to the state
administrator within 180 days for approval of their offices.

Unfortunately, some municipalities have attempted to exploit
ambiguities in the existing law and proposed changes to their
indigent defense plans that usurp the long-standing role of bar
associations - those best suited to protect and preserve the
Constitutional rights of the indigent accused and the crucial role of
experienced court-appointed private counsel. Such changes would
further overburden existing providers by requiring them to provide
not only primary criminal defense counsel but also counsel in
conflict cases, which by their very nature tend to be the most
complex of criminal matters. While entities such as legal aid
societies or bureaus and public defenders are fighting to maintain
and ultimately decrease caseloads, the addition of conflict cases is
contrary to the current trend and against public policy. Certainly
the desire of localities to save money is understandable, but not
when it jeopardizes the Constitutional rights of its citizens.

This bill would preserve the indigent defense system as it currently
stands. Those counties with Conflict Defender offices are not
disrupted and there is a mechanism for future offices to be approved
after criteria are developed by the Office of indigent Legal
services. This bill would simply clarify the already existing law to
ensure that those defendants within conflict cases are confident that
there is no impediment to their representation, no conflict between
their attorney within their case and that any changes to the system
will be done in a thoughtful, deliberate manner and not solely on a
cost basis.

LEGISLATIVE HISTORY:
This is a new bill

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act would take effect immediately.