S T A T E O F N E W Y O R K
________________________________________________________________________
1903
2017-2018 Regular Sessions
I N A S S E M B L Y
January 13, 2017
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Introduced by M. of A. FAHY, LENTOL, AUBRY, McDONALD, STECK, GOTTFRIED,
MAGNARELLI, CRESPO, SEPULVEDA, ARROYO, SIMOTAS, MAGEE, COLTON, CROUCH,
MONTESANO, RAIA, ROSENTHAL, WOERNER, JENNE, BRINDISI, MOSLEY, PALMESA-
NO, BRONSON, SKOUFIS, BARCLAY, BLANKENBUSH, CAHILL, STEC, MURRAY,
BARRETT, PEOPLES-STOKES, BUTLER, LUPARDO, LALOR, PICHARDO, RIVERA,
STIRPE, WALKER, JAFFEE, O'DONNELL, FINCH, RAMOS, RYAN, HUNTER, DAVILA,
GRAF, RODRIGUEZ, BRABENEC, OTIS, TITUS, PERRY, OAKS, MAYER, GUNTHER,
ENGLEBRIGHT, WEPRIN, KEARNS, ORTIZ, RICHARDSON, HYNDMAN, ABBATE,
BUCHWALD, ZEBROWSKI, SIMON, SEAWRIGHT, GLICK, BLAKE, COOK, GALEF,
GIGLIO, HAWLEY, HEVESI, HIKIND, LIFTON, LOPEZ, SKARTADOS -- read once
and referred to the Committee on Codes
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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06723-02-7
A. 1903 2
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
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.
§ 2. Section 722-e of the county law, as added by chapter 878 of the
laws of 1965, is amended to read as follows:
§ 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 EIGHTEEN, THE STATE SHALL PROVIDE
REIMBURSEMENT FOR NOT LESS THAN TWENTY-FIVE PERCENT OF SUCH EXPENSES;
AND
(B) APRIL FIRST, TWO THOUSAND NINETEEN, THE STATE SHALL PROVIDE
REIMBURSEMENT FOR NOT LESS THAN THIRTY-FIVE PERCENT OF SUCH EXPENSES;
AND
(C) APRIL FIRST, TWO THOUSAND TWENTY, THE STATE SHALL PROVIDE
REIMBURSEMENT FOR NOT LESS THAN FORTY-FIVE PERCENT OF SUCH EXPENSES; AND
(D) APRIL FIRST, TWO THOUSAND TWENTY-ONE, THE STATE SHALL PROVIDE
REIMBURSEMENT FOR NOT LESS THAN FIFTY-FIVE PERCENT OF SUCH EXPENSES; AND
(E) APRIL FIRST, TWO THOUSAND TWENTY-TWO, THE STATE SHALL PROVIDE
REIMBURSEMENT FOR NOT LESS THAN SIXTY-FIVE PERCENT OF SUCH EXPENSES; AND
(F) APRIL FIRST, TWO THOUSAND TWENTY-THREE, 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.
A. 1903 3
§ 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.
§ 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:
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.
A. 1903 4
(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.
§ 5. This act shall take effect April 1, 2018.