Relates to the right of defendants in misdemeanor or felony cases to have such matter appear before a judge or justice admitted to practice law in New York; creates an automatic right to have a case reassigned to an attorney judge.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2868
SPONSOR: O'Donnell TITLE OF BILL:
An act to amend the uniform justice court act, in relation to the right
of defendants in misdemeanor or felony cases to have such matter appear
before a judge or justice admitted to practice law in New York
PURPOSE OR GENERAL IDEA OF BILL:
This bill would give defendants in criminal cases in town and village
justice courts the right to choose to appear in front of a judge who is
a lawyer.
SUMMARY OF PROVISIONS:
Section one of the bill adds a new section 105-a to the Uniform Justice
Court Act ("UJCA") entitled "Election to proceed in certain criminal
actions." The new section gives a defendant who has been charged with a
misdemeanor or felony, and who is appearing in a justice court, the
right to proceed before a judge who is a lawyer. Thus, a defendant may
"opt out" of proceeding before a non-attorney judge in a criminal case.
The defendant must make such an election in writing, on a form to be
prescribed by the chief administrator of the courts, within specified
time frames.
This legislation would create an automatic right to have a case reas-
signed to an attorney judge, as provided in the first sentence of subdi-
vision (a) of new UJCA § 105-a. As a result, the current "good cause
shown" standard of Criminal Procedure Law ("CPL") 170.25 would no longer
have to be met by a defendant seeking to proceed before a lawyer judge.
The newly created "opt-out" right would only be available after arraign-
ment and before the making of substantive motions to prevent forum shop-
ping. Subdivision (c) of the new UJCA § 105-a requires the chief admin-
istrator of the courts to promulgate implementing rules, which must
ensure timely notice to defendants of the right to elect to proceed
before an attorney judge and must also ensure that when such an election
is made, the case is reassigned to an attorney judge in a timely manner.
It is the legislative intent that notice of the "opt out" right will be
given to defendants during arraignment in two ways: instruction by the
judge and through the form used to make the election, which will also
explain the right and how to exercise it.
The text of this bill is substantially the same as that proposed by the
Special Commission on the Future of the New York State Courts in Septem-
ber 2008. The Commission's report, discussed below, identified a variety
of problems in the local justice court system and proposed a number of
different solutions. Model legislation was included as an appendix to
the report, and the proposed model legislation was divided into 4
lettered parts, each addressing a different set of issues. This bill
addresses one issue only - the due process concerns that stem from
having non-attorney judges presiding over criminal cases - and the bill
text is contained in section 2 of Part C of the Commission's proposed
Model Legislation.
JUSTIFICATION:
In late 2006, the Assembly Judiciary and Codes committees held a public
hearing to address reform of the NYS justice courts. The hearing
followed a series of articles in the New York Times that reported on a
variety of problems and alleged abuses by some justices of the town and
village courts. Some of the cases profiled in the NYT series highlighted
the due process and other violations that can result from non-lawyer
justices' lack of familiarity with legal and ethical rules, especially
in criminal cases where liberty interests are at stake. The debate over
the town and village justice courts - whether they should continue in
their present form and whether or not judges should have to be attorneys
admitted to practice, as required for all other courts in the state has
gone on since at least the early part of the 20th century. As part of
this most recent renewal of the debate, a special commission established
in 2006 by Chief Judge Judith Kaye issued a report in September 2008
entitled Justice Most Local: The Future of Town and Village Courts in
New York State (hereinafter referred to as Justice Most Local). The
special commission's report dealt with a wide array of issues, and an
appendix to the report includes proposed model leg islation designed to
address those issues. This bill address only a single issue: the right
of a Criminal defendant, whose liberty is at issue, to proceed in front
of a judge who is a lawyer. After an extensive review of the justice
courts that included visits to courts across the state, meetings with
justices, clerks, prosecutors, public defenders, probation officers and
other local government officials, and four public hearings, the special
commission concluded that "immediate action" was needed to address,
among other things, "due process violations and other legal errors,"
Justice Most Local, p. 10. In its summary under the heading "Safeguard-
ing Due Process Rights," the report said the following about non-attor-
ney justices: "... we remain concerned about due process issues and the
legal consequences that can be imposed by justices who have not received
a legal degree. After extensive debate about the possible proposals that
might address these recurring concerns, we believe that the simplest and
most effective solution is to provide all defendants...an "opt-out"
right to hive his or her case heard by an attorney judge, at a point
after arraignment but before a trial is scheduled or before substantive
motions are made.... We believe
that such an "opt-out" right should address any substantive or due
process concerns, without entirely dismantling a system that has been in
place for hundreds of years." Justice Most Local, p.17. This bill there-
fore Creates such an "opt-out" right, in substantially the same form
proposed by the special commission, as the most practical compromise
that will give defendants the right to have potentially complex legal
issues resolved by lawyer judges without completely divesting non-attor-
ney justices of criminal jurisdiction.
PRIOR LEGISLATIVE HISTORY:
A.4292 (2021-22)
A.8791 (2019-20)
A.9598 (2017-2018)
A.3149 (2013-2014);
A.5221 (2011-2.012);
A.5899/S.4091 (2009-2010) (advanced to third reading in Assembly in
2009).
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
To be determined.
EFFECTIVE DATE:
This act shall take effect 120 days after the date on which it shall
have become a law.
STATE OF NEW YORK
________________________________________________________________________
2868
2023-2024 Regular Sessions
IN ASSEMBLY
January 27, 2023
___________
Introduced by M. of A. O'DONNELL -- read once and referred to the
Committee on Judiciary
AN ACT to amend the uniform justice court act, in relation to the right
of defendants in misdemeanor or felony cases to have such matter
appear before a judge or justice admitted to practice law in New York
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The uniform justice court act is amended by adding a new
2 section 105-a to read as follows:
3 § 105-a. Election to proceed in certain criminal actions.
4 a. A defendant appearing in a justice court pursuant to an accusatory
5 instrument that charges a misdemeanor or felony may elect to proceed in
6 such matter only before a justice or judge admitted to practice law in
7 this state. Such election shall be by written instrument in a form
8 prescribed by the chief administrator of the courts and shall be filed
9 with such court not later than the completion of the first appearance at
10 which either the defendant makes a motion or such court decides a motion
11 made by the prosecutor, other than a motion in relation to any matter
12 specified in subdivision b of this section.
13 b. Notwithstanding an election pursuant to subdivision a of this
14 section, a justice or judge not admitted to practice law in this state
15 may arraign the defendant, enter a plea, vacate a plea entered by such
16 justice or judge, issue or modify a securing order, fix or modify bail,
17 assign counsel, conduct a proceeding pursuant to article one hundred
18 seventy or one hundred eighty of the criminal procedure law, issue a
19 temporary order of protection, or suspend a license or registration
20 pursuant to article twenty of the vehicle and traffic law.
21 c. The chief administrator shall promulgate rules to effectuate the
22 provisions of this section. Such rules shall ensure that defendants are
23 timely advised of the right of election established in this section and
24 that each case in which a defendant makes such an election is assigned
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01812-01-3
A. 2868 2
1 to a justice or judge admitted to practice law in this state with mini-
2 mum practicable delay and burden to the parties.
3 § 2. This act shall take effect on the one hundred twentieth day after
4 it shall have become a law. Effective immediately, the addition, amend-
5 ment and/or repeal of any rule or regulation necessary for the implemen-
6 tation of this act on its effective date are authorized to be made on or
7 before such date.
