The New York State Senate

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8114

                            I N  S E N A T E

                              June 13, 2016
                               ___________

Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
  when printed to be committed to the Committee on Rules

AN ACT to amend the county law, the executive law and the state  finance
  law, in relation to indigent defense services

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative findings and declaration. It is  a  fundamental
right  of  all persons in the United States to be represented by counsel
in all criminal prosecutions. In the case of GIDEON V.  WAINWRIGHT,  372
U.S.  335,  the  United States Supreme Court ruled that indigent persons
accused in state felony cases who were unable to afford  counsel  had  a
constitutional right to be defended by an appointed attorney paid by the
state.  Subsequently, the Supreme Court determined that indigent persons
accused of any criminal charge that could result in imprisonment, wheth-
er a felony or misdemeanor, are entitled to counsel at  the  expense  of
the state.
  New  York state has chosen to fulfill its obligation to provide repre-
sentation to indigent persons accused of a crime by requiring each coun-
ty outside New York city and New York city to implement and fund a  plan
to  provide such representation. In 2006 the Commission on the Future of
Indigent Legal Services concluded that a system of county  operated  and
funded  indigent  defense  services failed to satisfy the constitutional
obligation to protect the rights of indigent persons accused of a crime.
Such Commission recommended that funding  for  indigent  legal  services
come from the State's general fund rather than from the counties.
  New  York state has entered into an agreement to settle a class action
lawsuit that alleged deprivation of the right to counsel in  five  coun-
ties.  The  agreement  acknowledges  that  the  Office of Indigent Legal
Services and the Indigent Legal Services Board are authorized "to  moni-
tor  and  study indigent legal services in the state, to recommend meas-
ures to improve those services, to award grant  monies  to  counties  to
support  their  indigent  representation  capability,  and  to establish
criteria for the distribution  of  such  funds."  While  the  settlement

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15873-01-6

S. 8114                             2

agreement pertains to only five counties, its criteria establish a stan-
dard for providing indigent legal services that should apply statewide.
  The  legislature  finds  and declares that in all criminal proceedings
against people unable to afford counsel, New  York  state  is  constitu-
tionally  required  to  provide public defense services. The legislature
further finds that the state is obligated to  undertake  initiatives  to
improve  the  quality  of  indigent  defense,  ensure  representation at
arraignment, implement caseload  standards  for  providers  of  indigent
legal services, and implement statewide standards for determining eligi-
bility  for  mandated  representation. Mandating counties to finance the
state's obligation to provide indigent legal services imposes a  signif-
icant  uncontrollable  financial  burden  on  counties dependent on real
property taxes to fund needed services, and subject to a  state  imposed
tax cap.
  The  legislature  finds  and  declares  that  in  order to fulfill its
constitutional obligation to provide indigent legal services, the  state
shall  pay  counties the full amount necessary to ensure the delivery of
quality legal services for indigent criminal defendants in a  consistent
manner throughout the State.
  S  2.  Section 722-e of the county law, as added by chapter 878 of the
laws of 1965, is amended to read as follows:
  S 722-e. Expenses. All expenses for  providing  counsel  and  services
other  than counsel hereunder shall be a county charge or in the case of
a county wholly located within a city a city charge to be paid out of an
appropriation for such purposes AND SHALL BE REIMBURSED BY THE STATE  TO
THE  COUNTY  OR CITY PROVIDING SUCH SERVICES, PROVIDED, HOWEVER, THAT IN
THE STATE FISCAL YEAR BEGINNING:
  (A) APRIL FIRST, TWO  THOUSAND  SEVENTEEN,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT  FOR  NOT  LESS THAN TWENTY-FIVE PERCENT OF SUCH EXPENSES;
AND
  (B) APRIL FIRST,  TWO  THOUSAND  EIGHTEEN,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT  FOR  NOT  LESS THAN THIRTY-FIVE PERCENT OF SUCH EXPENSES;
AND
  (C) APRIL FIRST,  TWO  THOUSAND  NINETEEN,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT FOR NOT LESS THAN FORTY-FIVE PERCENT OF SUCH EXPENSES; AND
  (D)  APRIL  FIRST,  TWO  THOUSAND  TWENTY,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT FOR NOT LESS THAN FIFTY-FIVE PERCENT OF SUCH EXPENSES; AND
  (E) APRIL FIRST, TWO THOUSAND  TWENTY-ONE,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT FOR NOT LESS THAN SIXTY-FIVE PERCENT OF SUCH EXPENSES; AND
  (F)  APRIL  FIRST,  TWO  THOUSAND  TWENTY-TWO, THE STATE SHALL PROVIDE
REIMBURSEMENT FOR NOT LESS THAN SEVENTY-FIVE PERCENT OF  SUCH  EXPENSES;
AND
  (G)  EVERY  YEAR THEREAFTER, THE STATE SHALL PROVIDE REIMBURSEMENT FOR
THE FULL AMOUNT OF SUCH EXPENSES.
  S 3. Subdivision 3 of section 832 of the executive law is  amended  by
adding a new paragraph (n) to read as follows:
  (N)  TO  ADOPT,  PROMULGATE, AMEND OR RESCIND RULES AND REGULATIONS TO
CARRY OUT THE PROVISIONS OF THIS SECTION, INCLUDING TO  (I)  ENSURE  THE
PRESENCE  OF  COUNSEL  AT THE FIRST APPEARANCE OF ANY ELIGIBLE DEFENDANT
CHARGED WITH A CRIME, (II) ESTABLISH CASELOAD/WORKLOAD  REGULATIONS  FOR
ATTORNEYS PROVIDING MANDATED REPRESENTATION, AND (III) IMPROVE THE QUAL-
ITY OF MANDATED REPRESENTATION.
  S  4.  Subdivision  3  of  section  98-b  of the state finance law, as
amended by section 2 of part E of chapter 56 of the  laws  of  2010,  is
amended to read as follows:

S. 8114                             3

  3.  Amounts  distributed  from  such  fund shall be limited to amounts
appropriated therefor and shall be distributed as follows:
  (a)  The  office  of  court administration may expend a portion of the
funds available in such fund to provide assigned counsel paid in accord-
ance with section thirty-five of the judiciary law, up to an annual  sum
of twenty-five million dollars.
  (b)  [An]  IN ADDITION TO THE AMOUNTS PAID TO EACH COUNTY AND THE CITY
OF NEW YORK PURSUANT TO SECTION SEVEN HUNDRED TWENTY-TWO-E OF THE COUNTY
LAW AND IN ACCORDANCE WITH SECTIONS EIGHT HUNDRED THIRTY-TWO  AND  EIGHT
HUNDRED  THIRTY-THREE  OF  THE  EXECUTIVE LAW AN annual amount [of forty
million dollars shall be made available to the city  of  New  York  from
such  fund  for the provision of services pursuant to article eighteen-B
of the county law; provided that the city of New York shall continue  to
provide  at  minimum  the aggregate amount of funding for public defense
services including, but not  limited  to,  the  amount  of  funding  for
contractors of public defense services and individual defense attorneys,
that  it  provided,  pursuant  to  article  eighteen-B of the county law
during its two thousand nine--two thousand ten  fiscal  year]  SHALL  BE
PAID  TO  SUCH COUNTIES AND CITY EQUAL TO THE AMOUNT PAID FROM SUCH FUND
TO SUCH COUNTIES AND CITY IN MARCH TWO THOUSAND TEN.
  (c) [Within the first fifteen days of March two thousand eleven,  each
county other than a county wholly contained within the city of New York,
shall  receive ninety percent of the amount paid to such county in March
two thousand ten. Within the first fifteen days of  March  two  thousand
twelve, each county other than a county wholly contained within the city
of  New  York  shall  receive seventy-five percent of the amount paid to
such county in March two thousand ten. Within the first fifteen days  of
March  two  thousand  thirteen,  each  county other than a county wholly
contained within the city of New York shall receive fifty percent of the
amount paid to such county in March two thousand ten. Within  the  first
fifteen  days  of  March two thousand fourteen, each county other than a
county wholly contained within the city of New York shall receive  twen-
ty-five  percent of the amount paid to such county in March two thousand
ten. For all state fiscal years following the two thousand thirteen--two
thousand fourteen  fiscal  year,  there  shall  be  no  required  annual
payments  pursuant  to this paragraph. Notwithstanding the provisions of
this paragraph, for each of the four required payments made to  counties
within the first fifteen days of March two thousand eleven, two thousand
twelve,  two  thousand  thirteen and two thousand fourteen, Hamilton and
Orleans counties shall receive such percentage  payments  based  on  the
amounts  that  each county would have received in March two thousand ten
had it satisfied the maintenance of  effort  requirement  set  forth  in
paragraph  (c)  of  subdivision  four  of this section in effect on such
date.
  (d)] Remaining amounts within such fund, after accounting  for  annual
payments  required in paragraphs (a)[,] AND (b) [and (c)] of this subdi-
vision and subparagraph (iii) of paragraph (a)  of  subdivision  two  of
this  section  shall  be  distributed  in accordance with sections eight
hundred thirty-two and eight hundred thirty-three of the executive law.
  S 5. This act shall take effect April 1, 2017.