Opinion
LX6701631.
Decided on March 12, 2008.
DWIGHT D. KRAEMER, ESQ. Village Attorney and Prosecutor Westbury, NY.
LAW OFFICES OF BERTRAM JORISCH Jericho, NY.
This case was returned to our calendar on January 9, 2008 on the VTL § 319-1 no proof of insurance charge. That charge was dismissed upon production of proof of insurance by the defendant. This Court previously dismissed a VTL § 509-1 charge concerning this defendant. See People v. Quiroga-Puma, NY Slip Op. 27527, ___ Misc 3d ___ (2007). I have severed the two cases in order to allow the People to appeal from a final order on the § 509-1 case. The People have announced their intention to perfect an appeal from that earlier determination. Defense counsel has indicated that he has not been retained concerning an appeal. He has requested the assignment of counsel for the appeal. He has indicated that he is not on the Assigned Counsel Defender Plan Panel.
See, Ruben v. American and Foreign Ins. Co., 185 AD2d 63, 592 N.Y.S.2d 167 (NY App. Div. 4th Dept., 1992), regarding divestiture of jurisdiction. The trial court retainsjurisdiction for all other purposes except matters related to the appeal. See also, CPLR § 4405 which states: "A motion under this Article shall be made before the judge who presided at trial within 15 days after decision, verdict or discharge of the jury. The Court shall have no power to grant relief after argument or submission of an appeal from the final judgment."
As a Notice of Appeal was filed in this case with the Appellate Term for the Supreme Court of Nassau County, this Court is without jurisdiction to assign counsel in this case. The relief sought after must therefore be denied. However, this Court believes there are serious issues which also need to be considered by the Appellate Term, the State of New York, the County of Nassau, and our Bar Association via the Assigned Counsel Defender Plan and the New York State and Nassau County Magistrates Associations.
The issues involving assigned appellate counsel are simple, but most are beyond the capacity of this Court to address, as they involve an appellate issue. Some of those issues involve the adequate funding of Legal Aid, Public Defender and Assigned Counsel programs throughout the State so that counsel for indigents may indeed be effective and advocate with the same resources as their adversaries, the prosecutors throughout the State. This is both a Sixth Amendment argument as it concerns the effective assistance of counsel and an equal protection of the laws argument to provide parity with State prosecutors. There is also the issue of the central administration of assigned counsel programs throughout the State so that the administration of legal services to the poor do not vary from county to county where, for example, some counties have more of a need for assigned counsel but less money available to pay for them. There is also the issue of assigning counsel. Currently the laws in New York State do not allow for the assignment of counsel by Village Courts in traffic infraction or local law cases where jail sentences may reach fifteen days per violation. While all of these issues present constitutional questions, it is the last one that this Court is confronting. Village Courts in Nassau County have no jurisdiction over felonies and misdemeanors. See People v. Ventura, 6 Misc 3d 1001(A), 800 NYS2d 354 (2004). Yet the issues before the Court are whether this defendant is eligible for the assignment of counsel and whether the Court has the legal right to assign counsel to this defendant concerning the appeal or otherwise. This Court must pay particular heed to the Supreme Court of the United States case of State of Alabama v. Shelton, 122 S.Ct. 1764 (2002), where the Court determined that the indigent defendant was entitled to the assignment of counsel when there was a mere possibility of jail.
Pursuant to Article III of the United States Constitution, courts may only consider cases in controversy, and may not render advisory opinions. This distinction was first raised in 1793, when President George Washington instructed then-Secretary of State Thomas Jefferson to write to the Supreme Court of the United States in order to ascertain the legal ramifications of the United States' neutrality in various European wars being waged at that time. Chief Justice John Jay wrote the following response:
"The Lines of Separation drawn by the Constitution between the three Departments of Government-their being in certain Respects checks upon each other-and our being Judges of a court in the last Resort-are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to the executive Departments.
We exceedingly regret every Event that may cause Embarrassment to your administration; but we derive Consolation from the Reflection, that your Judgment will discern what is Right, and that your usual Prudence, Decision and Firmness will surmount every obstacle to the Preservation of the Rights, Peace, and Dignity of the United States.
We have the Honor to be, with perfect Respect, Sir, your most obedient and most humble Servants."
THE SIXTH AMENDMENT RIGHT TO COUNSEL
The United States Constitution Amendment VI reads in pertinent part:
"In all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense."
The Sixth Amendment provides for the assistance of counsel in all criminal prosecutions. The Supreme Court of the United States first recognized the right to appointed counsel in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55 (1932). In Powell, nine black youths had been charged with raping two white girls. The authorities ushered the defendants to trial in the midst of a community firestorm, where eight defendants were convicted and sentenced to death. On appeal, the Supreme Court held the defendants lack of access to counsel had violated their right to a fair hearing under the Fourteenth Amendment. Shortly thereafter, in Johnson v. Zersbt, 304 U.S. 458, 58 S.Ct. 1019 (1938), the Supreme Court held that the right to counsel derived from the Sixth Amendment. Justice Black, writing for the majority, held that the right to counsel applied to all criminal prosecutions, not just felonies. Though initially the Johnson decision applied only to federal courts, and states were only required to assign counsel under special circumstances, the Supreme Court later expanded the protection to the states.
For example, when capital punishment was a possible penalty. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252 (1942).
In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 (1963), the Supreme Court expressly rejected any limitations on the right to counsel in state prosecutions. The defendant in the case, Clarence Earl Gideon, had broken into a pool hall. Declaring his indigence, the Trial Court refused to assign counsel, stating that the State of Florida only appointed counsel in capital offense cases. Gideon then mounted his defense and was convicted. He prepared his own Petition for Certiorari to the Supreme Court of the United States. The Supreme Court held that the state has an obligation to provide counsel for indigent defendants in all state criminal prosecutions, without limitation.
See, Liotti, Thomas F. "Does Gideon Still Make A Difference?" 2 NY City L. Rev. 105 (1998).
The Supreme Court later expanded the right to assistance of counsel to include the assistance of counsel during a first appeal as of right. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814 (1963). The Court later clarified that this grant included that the assistance of counsel be effective. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830 (1985). In addition to these federal rights to the assistance of counsel, New York State harbors its own separate guarantees (detailed infra).
THE HISTORY OF ASSIGNED COUNSEL IN NEW YORK
Prior to the Supreme Court of the United States deciding Gideon v. Wainwright, 372 U.S. 335; 83 S. Ct. 792 (1963), indigent defendants had to either represent themselves pro se or rely upon the benevolence of attorneys volunteering to represent them pro bono publico. This dysfunctional system deprived countless poor people of their right under the Sixth Amendment to effective legal representation. This case presents an additional permutation to this very vexing problem, in that this defendant is not a citizen and may be an undocumented immigrant or alien.
For reasons set forth hereinafter, this Court has deliberately not inquired about this subject.
New York State has provided for assigned counsel for indigent defendants in criminal cases nearly eighty years before the Supreme Court of the United States made such a mandate in Gideon. The State Legislature in 1881 adopted § 308 of the Criminal Procedure Law, requiring courts to appoint counsel pro bono publico for indigent defendants. In 1961, the Legislature added a provision to County Law § 224(10), which authorized local governments, namely the counties, the authority to appropriate their own funds to contract with private agencies. The most notable use of this authority caused the creation of the Legal Aid Society in New York City.
The New York Court of Appeals later set a striking precedent for state courts: indigent defendants in all cases, not merely felonies, have the right to appointed counsel. People v. Witenski, 15 NY2d 392, 259 NYS 413 (1965). Much like the Supreme Court of the United States did in Douglas, the New York Court of Appeals granted a right to assignment of counsel to such appeal as a statutory right. People v. Hughes, 15 NY.2d 172, 256 NYS2d 803 (1965). This right also includes the right for that assistance of counsel to be effective. People v. Gonzalez, 47 NY2d 606, 419 NYS2d 913 (1979). In Hughes, the Court of Appeals held that the right to assistance of counsel means more than just having a person with a law degree nominally representing a defendant-the representation must be effective. Ibid, at 610.
The New York State Legislature adopted Article 18-B of the County Law in 1965. Article 18-B requires local governments to enact plans to provide for the legal representation of indigent defendants. Prior to these formal requirements, indigent defendants and the courts relied on attorneys working pro bono publico. The new system offered local governments options for how to provide for the assignment of counsel. The Legislature has a less-than-frequent record of raising assigned counsel fees. Bar Associations, individual attorneys, and indigent defendants (represented pro bono publico) were reduced to litigation in their attempts to raise assigned counsel fees, which the Legislature failed to do for nearly two decades following the 1986 increase. In 2005, the New York State Bar Association issued suggested standards for improving the current assigned counsel system. The Doyle Report, so-named after its chairman Vincent Doyle, III Esq., proposed the creation of publicly-funded state-wide entity headed by a commissioner to monitor standards of representation.
See, Liotti v. State of New York (EDNY, 2000); New York County Lawyers' Association v. Pataki (Sup.Ct. NY Cty., 2000). In Liotti v. State of New York, County of Nassau, et al., E.D.NY, Docket No. CV 00-2335, this Justice, pro bono publico, as a private attorney and bar leader commenced an action in federal court during the 18-B funding and rate crisis, alleging that the defendants were systematically violating the Supreme Court mandate of Gideon, id., by not providing sufficient pay to assigned counsel. This became the first case of that genre which others sought to copycat later. The case was assigned to the Hon. Joanna Seybert. The Bar Association settled becoming an advocate for an increase in assigned counsel fees and changing their system of assignment to a random, rotational model so as to more evenly distribute assignments among members of the panels. The action against the State was dismissed on Eleventh Amendment grounds and the action against the county survived a motion for summary judgment, but Judge Seybert provided in her decision that an element of proof would have to include evidence that sanctions had been imposed against assigned counsel attorneys based upon the inadequate pay they had received. This became an impossible burden to meet and the plaintiff agreed to a voluntary dismissal and no appeal was taken. Yet, the primary purpose of the case succeeded in drawing much needed attention to the issue of constitutional magnitude which then enlisted other bar groups into legal action and ultimately caused the State to increase rates rather than continuing to incur the costs and embarrassment of this litigation. See Michael A. Riccardi, Class Action Lawsuit Challenges 18-B Fee Structure, New York Law Journal at 1 and 2; New York City News, National Lawyers Guild N.Y.C. Chapter, February, 2000, Call to Raise Assigned Counsel Rates; Catherine Schmoller, Editor of the Attorney of Nassau County, Assigned Counsel Fees: 'You Get What You Pay For,' February, 2000 at 3, 15 16; Robin Topping, A Lawyer's Case For More Pay, Says Court-Appointed Attorneys Underpaid, Newsday, February 9, 2000 at A24; Michael A. Riccardi, Second Lawsuit Challenges Rule 18-B Fee Schedule, New York Law Journal, February 22, 2000 at 1 and 4; Susan T. Kleuwer, Board of Directors Take Action, Nassau Lawyer, Journal of the Nassau County Bar Association, March, 2000, Vol. 48, No. 2 at 1 22; Thomas F. Liotti, Letters to the Editor, System Breakdown Seen As Imminent, New York Law Journal, March 13, 2000 at 2; Editorial, Don't Make Paupers of Lawyers Who Help the Poor, Newsday, March 20, 2000 at A 26; Catherine Schmoller, (2 articles), The Right to Counsel and Suits Seek to Force Fee Hike and Report: Give Assigned Counsel a Raise, The Attorney of Nassau County, March, 2000, Vol 6, No. 19 at 1 and 12; NCBA Lobby for 18-B Fees, Nassau Lawyer, April, 2000 at 3; Joel K. Asarch, President's Column, Are We Doing Enough For Our Members?, The Nassau Lawyer, April, 2000 at 4; John Caher, Proposed Budget Has No Increase For 18-B Fees, New York Law Journal, April 6, 2000 at 1 8; Joel K. Asarch, President's Column, Board United In Seeking Increased 18-B Fees, May, 2000 at 4 22 and Richard D. Collins, Update On Assigned Counsel Rates: Part II, May, 2000 At 17, The Nassau Lawyer; Criminal Practice Guide, May 17, 2000, Vol. 1, No. 5, published by Pike Fischer, Inc., a subsidiary of the Bureau of National Affairs, Inc., a supplement to The BNA Criminal Practice Manual and The Criminal Practice Report, see New York Attorney's Effort to Raise Fees, Obtaining Funding to Pay for Better Indigent Defense Services at 4; Robert E. Kessler, Widows Fight For Lawyer's Fee, Say Only Their Counsel Earned It, Newsday, May 18, 2000 at A8 Y A60; Zachary R. Dowd, Around The Island, Crime Courts, Lawyers-For-Poor Plan: An "Illusion of Justice?" Wednesday, June 28, 2000 at A303. Full Amended Verified Complaint and settlement papers reprinted in the New York State Bar Association, Criminal Justice Section Journal, Summer, 2000, Vol. 8, No. 1. Cited at 11, footnote #24 of the New York State Bar Association, Special Committee on Public Trust and Confidence in the Legal System, Report to the House of Delegates: Enhancing Public Trust and Confidence in the Legal System, October, 2000. Peter Sloggat, Task Force To Study Fee Hikes, The Attorney of Nassau County, January, 2001 at 4. See, New York Law Journal, March 26, 2001 at 35, col. 3 for a copy of Decision dismissing the action as to the State and Leigh Jones, State Dismissed As Party In 18-B Suit, March 26, 2001 at LI-2. See also, Thomas F. Liotti, Post Opinion, N.Y.'s Coming Guarantee: An Unfair Trial, Op-Ed article appearing in the New York Post on Wednesday, April 4, 2001 at 31. See, also, Liotti v. New York State, New York Law Journal, March 26, 2001 at 35, cols. 3, 4, 5 and 6 for a decision by Judge Seybert, granting the motion to dismiss as to the State. See Laura Mansneurs, A Brake On The Wheels Of Justice, Shortage Of Lawyers For The Poor Plagues The Courts, The New York Times, January 17, 2001 at B1 and Robin Topping, Law Order Column, Around The Island, Crime Courts, Attorneys Protest Low Pay For Indigent Cases, Newsday, January 17, 2001 at A31. See also, Robin Topping, Around The Island, Putting A Price Tag On The Right To Counsel, Newsday, August 21, 2002 at A23. See Andrew Harris, Judge Narrows Suit Challenging Impact of Low 18-B Rates, New York Law Journal, September 29, 2004 at 1 and 2. See Peter R. Schlam and Harvey M. Stone, Article 18-B, Abstention, Hiring and Discrimination, Pleadings, Eastern District Roundup. The New York Law Journal, October 8, 2004 at 3 5; News to Note, Lawsuit Attacking 18B System Survives Motion to Dismiss, The Mouthpiece, November/December, 2004 at 23.
Caher, John. "Statewide Standards Urged for Indigent Defense Counsel." 4/26/2005 NYLJ 1, (col. 3)
UNCONSTITUTIONALITY OF ARTICLE 18-B
This Court has previously held that Village Courts have a constitutional obligation to assign counsel to indigent defendants where there is a mere possibility of jail. New York County Law Article 18-B § 722 provides:
People v. Daniel Louis, New York Law Journal, March 15, 1999 at 1, 25 and 33. For many years this Court has had an informal agreement with the Assigned Counsel Defender Plan Office that it may assign counsel in violation cases if there is a possibility of jail and if the defendant is, in fact, indigent.
"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."
Further, County Law Article 18-B § 722-a provides:
For the purposes of this article, the term "crime" shall mean a felony, misdemeanor, or the breach of any law of this state or of any law, local law or ordinance of a political subdivision of this state, other than one that defines a "traffic infraction," for which a sentence to a term of imprisonment is authorized upon conviction thereof.
As noted earlier, this Court does not have jurisdiction over felonies and misdemeanors, only violations. Although the § 722-a catch-all provision would normally apply, both VTL § 509 and § 319 are traffic infractions, which are excepted under that catch-all provision. Regardless, pursuant to VTL §§ 509 and 319, the charges carry with them a possible sentence of jail time.
These violations do not qualify for the appointment of counsel under Article 18-B because they are not felonies or misdemeanors, yet carry with them some of the same penalties as a felony or misdemeanor; to wit: jail time.
This Court has a duty to assign counsel regardless of the level of a crime, be it felony, misdemeanor, or violation, if a jail term becomes an option for sentencing. The Court is prohibited from doing so under Article 18-B. This Court holds that the Defendant's Constitutional right to counsel supercedes the State's laws. Article 18-B fails to provide the necessary guarantees within our justice system for indigent defendants, and as such, is unconstitutional. Since this Court is divested of jurisdiction and is therefore denying the application for the assignment of counsel, its holding regarding the unconstitutionality of Article 18-B is dicta.
The defendant here must defend against the § 509 charge before the Appellate Term, or have this Court's dismissal overturned without opposition. Pursuant to County Law Article 18-B, § 722, authority lies with the appropriate Appellate Term to assign counsel.
The Court notes that our State has considered our lowly Village and Town Courts to be of little significance since we deal primarily with Vehicle and Traffic and Local Laws or Village Code cases. We are the stepchildren, the toy courts that generate substantial income for the State and our municipalities, yet we often must operate on a shoe string and our cases are not considered to be important enough to address constitutional concerns. What's all the ruckus? It is that these courts and the defendants who come before them, their lawyers when they can afford them and court personnel, have been sorely neglected for too long. In short, the silence on these issues by bar leaders, elected officials and administrative members of the judiciary, has been deafening.
This Court writes this decision and all others to highlight its concern about these subjects, calling to arms those in our society who chose to undertake constructive measures to do something about them. As long as this jurist is a Village Justice, he will follow his oath of upholding our United States and New York Constitutions. And, he will also do his best to inspire all others to do likewise. If silence is acceptance, then this Court will never remain silent when it is faced with correctable, remediable inequities in our system of laws and jurisprudence.
This Court has addressed possible Tenth Amendment violations in its December 20, 2007 decision. The federal government is now mandating requirements for licensing drivers which, in this Court's view, unfairly discriminate against aliens. Because indigent defendants must be provided with counsel, and the funding must come from some source, the federal government might also consider shouldering the burden of providing these undocumented aliens with counsel. The federal government could reimburse the states for providing counsel. One such program already exists: the Department of Justice operates the State Criminal Alien Assistance Program, which reimburses state governments for the costs of detaining undocumented alien inmates.
The Department of Justice Reauthorization Act of 2005, Pub.L. 109-162 (2005).
Editorial, "Feds should pay for jailing undocumented immigrants." Newsday, March 5, 2008.
The County Law Article 18-B, § 722-b(3) also provides "In extraordinary circumstances a trial or appellate court may provide for compensation in excess of the foregoing limits and for payment of compensation and reimbursement for expenses before the completion of the representation." The defendant through his counsel has asked for the assignment of counsel for purposes of defending against an appeal. The Defendant is apparently indigent in that he cannot afford the services of an attorney for that appeal. While this Court is without the legal authority to assign counsel on appeal, it is apparent that if 18-B is unconstitutional because it does not allow for the assignment of counsel by Town and Village Justices in violation cases. Thus, the statute needs to be amended to provide for the assignment of counsel in these courts and cases. This Court respectfully refers the matter to the Appellate Term and the Assigned Counsel Defender Plan for a consideration of these issues. If they do not act then the defendant will be unable to defend against the appeal and may thereafter be once again subject to the possibility of a jail sentence. The Village may in fact win their appeal from this Court's decision by default because the defendant can not afford to defend against the appeal. If that is so, then the State and this County will allow a gross inequity to occur which will have a ripple effect throughout the State and nation. No one charged with a violation and who is in forma pauperis and where there is a possibility of jail should be denied the assignment of effective counsel.