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This entry was published on 2019-11-15
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SECTION 722
Plan for representation
County (CNT) CHAPTER 11, ARTICLE 18-B
§ 722. Plan for representation. The governing body of each county and
the governing body of the city in which a county is wholly contained
shall place in operation throughout the county a plan for providing
counsel to persons charged with a crime or who are entitled to counsel
pursuant to section two hundred sixty-two or section eleven hundred
twenty of the family court act, article six-C of the correction law,
section four hundred seven of the surrogate's court procedure act or
article ten of the mental hygiene law, who are financially unable to
obtain counsel. Each plan shall also provide for investigative, expert
and other services necessary for an adequate defense. The plan shall
conform to one of the following:

1. Representation by a public defender appointed pursuant to county
law article eighteen-A.

2. In criminal proceedings, representation by counsel furnished by a
private legal aid bureau or society designated by the county or city,
organized and operating to give legal assistance and representation to
persons charged with a crime within the city or county who are
financially unable to obtain counsel. In proceedings under the family
court act, representation by a private legal aid bureau or society, or
by any corporation, voluntary association, or organization permitted to
practice law under the authority of subdivision five of section four
hundred ninety-five of the judiciary law.

3. (a) Representation by counsel furnished pursuant to either or both
of the following: a plan of a bar association in each county or the city
in which a county is wholly contained whereby: (i) the services of
private counsel are rotated and coordinated by an administrator, and
such administrator may be compensated for such service; or (ii) such
representation is provided by an office of conflict defender.

(b) Any plan of a bar association must receive the approval of the
office of indigent legal services before the plan is placed in
operation. In the county of Hamilton, representation pursuant to a plan
of a bar association in accordance with subparagraph (i) of paragraph
(a) of this subdivision may be by counsel furnished by the Fulton county
bar association pursuant to a plan of the Fulton county bar association,
following approval of the office of indigent legal services. When
considering approval of an office of conflict defender pursuant to this
section, the office of indigent legal services shall employ the
guidelines it has heretofore established pursuant to paragraph (d) of
subdivision three of section eight hundred thirty-two of the executive
law.

(c) Any county operating an office of conflict defender, as described
in subparagraph (ii) of paragraph (a) of this subdivision, as of March
thirty-first, two thousand ten may continue to utilize the services
provided by such office provided that the county submits a plan to the
state administrator within one hundred eighty days after the
promulgation of criteria for the provision of conflict defender services
by the office of indigent legal services. The authority to operate such
an office pursuant to this paragraph shall expire when the state
administrator (or, on or after April first, two thousand nineteen, the
office of indigent legal services) approves or disapproves such plan.
Upon approval, the county is authorized to operate such office in
accordance with paragraphs (a) and (b) of this subdivision.

(d) For purposes of this subdivision, any plan of a bar association
approved hereunder pursuant to this subdivision, as provided prior to
April first, two thousand nineteen, shall remain in effect until it is
superseded by a plan approved by the office of indigent legal services
or disapproved by such office.

4. Representation according to a plan containing a combination of any
of the foregoing. Any judge, justice or magistrate in assigning counsel
pursuant to sections 170.10, 180.10, 210.15 and 720.30 of the criminal
procedure law, or in assigning counsel to a defendant when a hearing has
been ordered in a proceeding upon a motion, pursuant to article four
hundred forty of the criminal procedure law, to vacate a judgment or to
set aside a sentence or on a motion for a writ of error coram nobis, or
in assigning counsel pursuant to the provisions of section two hundred
sixty-two of the family court act or section four hundred seven of the
surrogate's court procedure act, or in assigning counsel to a defendant
when a case has been calendared for consideration of resentencing
pursuant to subdivision four of section six hundred one-d of the
correction law or when a court is otherwise called upon to consider
whether a proper term of post-release supervision was imposed as part of
a determinate sentence, shall assign counsel furnished in accordance
with a plan conforming to the requirements of this section; provided,
however, that when the county or the city in which a county is wholly
contained has not placed in operation a plan conforming to that
prescribed in this subdivision or subdivision three of this section and
the judge, justice or magistrate is satisfied that a conflict of
interest prevents the assignment of counsel pursuant to the plan in
operation, or when the county or the city in which a county is wholly
contained has not placed in operation any plan conforming to that
prescribed in this section, the judge, justice or magistrate may assign
any attorney in such county or city and, in such event, such attorney
shall receive compensation and reimbursement from such county or city
which shall be at the same rate as is prescribed in section seven
hundred twenty-two-b of this article. When a case has been calendared
for consideration of resentencing pursuant to subdivision four of
section six hundred one-d of the correction law or when a court is
otherwise called upon to consider whether a proper term of post-release
supervision was imposed as part of a determinate sentence, the attorney
appointed should be the attorney who appeared for the defendant in
connection with the judgment or sentence or, if the defendant is
currently represented concerning his or her conviction or sentence or
with respect to an appeal from his or her conviction or sentence, such
present counsel.

5. In classification proceedings under article six-C of the correction
law or from an appeal thereof, representation shall be according to a
plan described in subdivisions one, two, three or four of this section.
If such plan includes representation by a private legal aid bureau or
society, such private legal aid bureau or society shall have been
designated to give legal assistance and representation to persons
charged with a crime.

Upon an appeal in a criminal action, and on any appeal described in
section eleven hundred twenty of the family court act, article six-C of
the correction law or section four hundred seven of the surrogate's
court procedure act, wherein the party is financially unable to obtain
counsel, the appellate court shall assign counsel furnished in
accordance with the plan, conforming to the requirements of this
section, which is in operation in the county or in the city in which a
county is wholly contained wherein the judgment of conviction,
disposition, or order of the trial court was entered; provided, however,
that when such county or city has not placed in operation a plan
conforming to that prescribed in subdivision three or four of this
section and such appellate court is satisfied that a conflict of
interest prevents the assignment of counsel pursuant to the plan in
operation, or when such county or city has not placed in operation any
plan conforming to that prescribed in this section, such appellate court
may assign any attorney in such county or city and, in such event, such
attorney shall receive compensation and reimbursement from such county
or city which shall be at the same rate as is prescribed in section
seven hundred twenty-two-b of this chapter. Assignment of counsel upon
an appeal in a criminal action pursuant to this subdivision, or pursuant
to paragraph b of subdivision one of section thirty-five of the
judiciary law, includes authorization for representation by appellate
counsel, or an attorney selected at the request of appellate counsel by
the administrator of the plan in operation in the county (or city in
which a county is wholly contained) where the conviction was entered,
with respect to the preparation and proceeding upon a motion, pursuant
to article four hundred forty of the criminal procedure law, to vacate a
judgment or to set aside a sentence or on a motion for a writ of error
coram nobis; compensation and reimbursement for such representation and
expenses shall be governed by sections seven hundred twenty-two-b and
seven hundred twenty-two-c of this article.