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This entry was published on 2014-09-22
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SECTION 35
Assignment of counsel to indigent persons and appointment of physicians in certain proceedings
Judiciary (JUD) CHAPTER 30, ARTICLE 2
§ 35. Assignment of counsel to indigent persons and appointment of
physicians in certain proceedings. 1. a. When a court orders a hearing
in a proceeding upon a writ of habeas corpus to inquire into the cause
of detention of a person in custody in a state institution, or when it
orders a hearing in a civil proceeding to commit or transfer a person to
or retain him in a state institution when such person is alleged to be
mentally ill, mentally defective or a narcotic addict, or when it orders
a hearing for the commitment of the guardianship and custody of a child
to an authorized agency by reason of the mental illness or mental
retardation of a parent, or when it orders a hearing to determine
whether consent to the adoption of a child shall be required of a parent
who is alleged to be mentally ill or mentally retarded, or when it
orders a hearing to determine the best interests of a child when the
parent of the child revokes a consent to the adoption of such child and
such revocation is opposed or in any adoption or custody proceeding if
it determines that assignment of counsel in such cases is mandated by
the constitution of this state or of the United States, the court may
assign counsel to represent such person if it is satisfied that he is
financially unable to obtain counsel. Upon an appeal taken from an order
entered in any such proceeding, the appellate court may assign counsel
to represent such person upon the appeal if it is satisfied that he is
financially unable to obtain counsel.

b. Upon an appeal in a criminal action or in a proceeding in the
family court or surrogate's court wherein the defendant or person
entitled to counsel pursuant to the family court act or surrogate's
court procedure act, is financially unable to obtain counsel, the court
of appeals or the appellate division of the supreme court may assign
counsel other than in the manner as is prescribed in section seven
hundred twenty-two of the county law only when it is satisfied that
special circumstances require such assignment.

2. The chief administrator of the courts may enter into an agreement
with a legal aid society for the society to provide assigned counsel in
the proceedings specified in subdivision one of this section. The
agreement shall be in a form approved by the chief administrator and
shall provide a general plan for a program of assigned counsel services
to be provided by such society. It shall also provide that the society
shall be reimbursed on a cost basis for services rendered.

3. No counsel assigned pursuant to this section shall seek or accept
any fee for representing the person for whom he or she is assigned
without approval of the court as herein provided. Whenever it appears
that such person is financially able to obtain counsel or make partial
payment for the representation, counsel may report this fact to the
court and the court may terminate the assignment or authorize payment,
as the interests of justice may dictate, to such counsel. Counsel
assigned hereunder shall at the conclusion of the representation receive
compensation at a rate of seventy-five dollars per hour for time
expended in court, and seventy-five dollars per hour for time reasonably
expended out of court, and shall receive reimbursement for expenses
reasonably incurred. For representation upon a hearing, compensation and
reimbursement shall be fixed by the court wherein the hearing was held
and such compensation shall not exceed four thousand four hundred
dollars. For representation in an appellate court, compensation and
reimbursement shall be fixed by such court and such compensation shall
not exceed four thousand four hundred dollars. In extraordinary
circumstances the court may provide for compensation in excess of the
foregoing limits.

4. In any proceeding described in paragraph (a) of subdivision one of
this section, when a person is alleged to be mentally ill, mentally
defective or a narcotic addict, the court which ordered the hearing may
appoint no more than two psychiatrists, certified psychologists or
physicians to examine and testify at the hearing upon the condition of
such person. A psychiatrist, psychologist or physician so appointed
shall, upon completion of his services, receive reimbursement for
expenses reasonably incurred and reasonable compensation for such
services, to be fixed by the court. Such compensation shall not exceed
two hundred dollars if one psychiatrist, psychologist or physician is
appointed, or an aggregate sum of three hundred dollars if two
psychiatrists, psychologists or physicians are appointed, except that in
extraordinary circumstances the court may provide for compensation in
excess of the foregoing limits.

4-a. In any proceeding under article ten of the mental hygiene law,
the court which ordered the hearing may appoint no more than two
psychiatrists, certified psychologists or physicians to examine and
testify at the hearing upon the condition of such person. A
psychiatrist, psychologist or physician so appointed shall, upon
completion of his or her services, receive reimbursement for expenses
reasonably incurred and reasonable compensation for such services, to be
fixed by the court in accordance with subdivision (a) of section 10.15
of the mental hygiene law.

5. All expenses for compensation and reimbursement under this section
shall be a state charge to be paid out of funds appropriated to the
administrative office for the courts for that purpose. Any rules and
orders respecting the assignment and compensation of counsel, and the
appointment and compensation of psychiatrists, psychologists or
physicians pursuant to this section and the form and manner of
processing of a claim submitted pursuant to this section shall be
adopted by the chief administrator. Each claim for compensation and
reimbursement pursuant to subdivisions three and four of this section
shall be submitted for approval to the court which made the assignment
or appointment, and shall be on such form as the chief administrator may
direct. After such claim is approved by the court, it shall be certified
to the comptroller for payment by the state, out of the funds
appropriated for that purpose.

6. Assigned counsel and guardians ad litem appointed pursuant to the
provisions of title two of article nine-B of the social services law
shall be compensated in accordance with the provisions of this section.

7. Whenever the supreme court or a surrogate's court shall appoint
counsel in a proceeding over which the family court might have exercised
jurisdiction had such action or proceeding been commenced in family
court or referred thereto pursuant to law, and under circumstances
whereby, if such proceeding were pending in family court, such court
would be authorized by section two hundred forty-nine of the family
court act to appoint an attorney for the child, such counsel shall be
compensated in accordance with the provisions of this section.

8. Whenever supreme court shall exercise jurisdiction over a matter
which the family court might have exercised jurisdiction had such action
or proceeding been commenced in family court or referred thereto
pursuant to law, and under circumstances whereby, if such proceedings
were pending in family court, such court would be required by section
two hundred sixty-two of the family court act to appoint counsel,
supreme court shall also appoint counsel and such counsel shall be
compensated in accordance with the provisions of this section.