|SAME AS||No Same As|
|Amd §§722 & 722-f, County L|
|Relates to plans for representation of persons accused of a crime or certain parties in family or surrogate's court.|
|01/25/2017||referred to codes|
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NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3048 SPONSOR: Lentol
TITLE OF BILL: An act to amend the county law, in relation to plans for representation of persons accused of a crime or certain parties in family court or surrogate's court This measure is being introduced at the request of the Chief Administra- tive Judge on behalf of the Unified Court System. This measure would amend provisions of Article 18-13 of the County Law in relation to approval of bar association plans for assigned counsel services in criminal cases and for certain parties in Family and Surro- gate's Court; and the filing of annual reports by counties and indigent legal service providers.   SUMMARY: Section 1 amends County Law § 722(3)(b) and (c) to transfer authority to approve bar association plans for the operation of an assigned counsel program or office of conflict defender from the Chief Administrator of the Courts to the Office of Indigent Legal Services (ILS). For counties operating an office of conflict defender on or after April 1, 2018, under the authority of County Law § 722(3)(c), the authority to approve (or disapprove) plans to operate such offices would be transferred to the Office. Section 2 adds a new paragraph (d) to County Law § 722(3) to provide that bar association plans approved prior to April 1, 2018 would remain in effect unless and until they are superseded by plans approved (or disapproved) by ILS. Section 3 amends County Law § 722-f(1) and (2) to require indigent legal service providers and counties to provide the Office with copies of annual reports filed with the State Comptroller and the Chief Adminis- trator. The report required to be filed with the Chief Administrator provides information on cases, staffing and finances of indigent legal service providers, while the State Comptroller report provides county expenditure data, broken down by funding source (local, state, federal or private) for providing mandated representation to persons unable to afford counsel. Section 3 would authorize ILS to determine the form of the annual report filed with the Chief Administrator.   JUSTIFICATION: This measure has two aims. First, to transfer authority to approve bar association plans for operation of an assigned counsel program or office of conflict defender from the Chief Administrator to ILS, while ensuring that any plan approved on or before April 1, 2018 would remain in effect unless and until superseded by a plan approved (or disapproved) by the ILS. Second, to require indigent legal service providers and counties to provide 1LS with copies of annual reports required to be filed with the Chief Administrator and State Comptroller.   TRANSFER OF AUTHORITY TO APPROVE PLANS OF BAR ASSOCIATIONS - Responsibility of Chief Administrator to approve bar association plans In 1965, in response to the decision in Gideon v. Wainwright, 372 U.S. 335 (1963), in which the Supreme Court held that states are required under the Sixth Amendment to provide representation in criminal cases for defendants who are unable to afford their own attorneys, New York enacted Article 18-B of the County Law and created a county based, coun- ty funded system for providing representation to indigent defendants to ensure that they receive meaningful and effective assistance of coun- sel.* This law required each county outside of New York City and New York City to establish a plan for the provision of such representation, providing for (1) creation of a public defender office; or (2) designation of a private legal aid bureau or society; or (3) adoption of a bar associ- ation plan, coordinated by an administrator, under which private counsel are provided on a rotating schedule (see County Law § 722(3); or (4) any combination of the first three. In 2010, the Legislature amended County Law § 722 to add a fourth method for counties to provide 18-B represen- tation, an office of conflict defender operated pursuant to a bar asso- ciation plan. Originally, the State's Judicial Conference was given responsibility under Article 18-B to approve bar association plans to operate an assigned counsel program.** In 2010, the Legislature extended this responsibility to include approval of bar association plans for opera- tion of an office of conflict defender. The 2010 legislation also directed that, when considering approval of bar association plans to operate an office of conflict defender, the Chief Administrator "employ the guidelines established by the office of indigent legal services." See L. 2010, c. 56. - Creation of ILS and the Indigent Legal Services Board In 2010, the Legislature created ILS and the Indigent Legal Service Board (Board). Id. Their statutory mission is "to monitor, study and make efforts to improve the quality of services provided pursuant to article eighteen-B of the county law." See Executive Law §§ 832(1), 833(1). ILS and the Board also were authorized to distribute State funds appropriated to the counties and City from the State's Indigent Legal Services Fund (ILSF). As part of its statutory duties and responsibil- ities; ILS was directed to "establish standards and criteria for the provision of ... services in cases involving a conflict of interest". See Executive Law § 832(3)(d). - Why transfer authority to approve bar association plans With the statutory mission to oversee all Article 18-B representation, 115 and the Board are best suited to review and approve bar association plans to provide 18-B representation. Having approval authority of bar association plans would enhance their current efforts to improve the quality of 18-B representation. For example: - Pursuant to Executive Law § 832(3)(d), on June 8, 2012 the Board issued standards and criteria for cases involving conflict cases; with transfer of approval authority, ILS would be the entity employing these standards and criteria when considering approval of an office of conflict defender. - ILS has convened a working group of experts to develop and draft Stan- dards for the Administration of Assigned Counsel Programs, which are expected to be submitted to the Board for review and approval by summer or fall 2016. With transfer of approval authority, these Standards would be used by ILS in considering approval of an assigned counsel program. - The Board has authorized the development of six targeted Assigned Counsel Infrastructure competitive grants to counties to establish or upgrade an assigned counsel program. With transfer of approval authori- ty, ILS could ensure that, as part of this grant program, the award counties develop assigned counsel plans that incorporate the standards issued by the Board. - ILS and the Board have provided non-competitive funding to counties to upgrade assigned counsel programs and conflict defender offices, includ- ing providing training, technology and adding or upgrading conflict defender attorney positions, support staff and assigned counsel adminis- trators. With transfer of approval authority, ILS can condition such funding opportunities with plans it has approved. - ILS consults with and assists counties and indigent legal service providers in the provision of indigent legal services, in part by providing guidance to county officials, providers and bar associations in developing assigned counsel and conflict defender plans. With trans- fer of approval authority, ILS could assist counties throughout the entire process of plan development and approval.   PROVISION OF ANNUAL REPORTS TO ILS - County Law § 722-f(1) and (2) annual report requirement County Law § 7224(1) and (2) require that indigent legal service provid- ers and counties file annual reports with the Chief Administrator and the State Comptroller. The report filed with the Chief Administrator provides information on cases, staffing and finances of indigent legal service providers, while the State Comptroller report provides county expenditure data, broken down by funding source (local, state, federal or private), for providing mandated representation to persons unable to afford counsel. - Office access to County Law § 722-f annual reports Having direct access to the annual reports required under County Law § 722-f(1) and (2) is important for a number of reasons, including: - ILS' duties and responsibilities require it to collect data contained in these two annual reports. For example, § 832(3)(b)(v) and (vi) require the collection of information regarding "the actual expenditures currently being made in each county on   indigent legal services," and caseload and disposition information. Being the recipient of these annu- al reports will help ILS fulfill its statutory duties. - These annual reports provided the primary sources of data for ILS' important September, 2014 report, Estimate of the Cost of Compliance with Maximum National Caseload Limits in Upstate New York - 2013, which revealed that the State would have had to spend an additional $105.2 million in 2013 to achieve compliance with maximum national caseload limits. ILS will be preparing such a cost estimate every year. This act would take effect April 1, 2018.   2015-16 LEGISLATIVE HISTORY: OCA 2015-7R Assembly 6389-A (M. of A. Lentol) (PASSED) * In subsequent years, the responsibility for providing County Law 18-B representation to the indigent was extended to certain types of proceedings under the Family Court Act and Surrogate's Court. ** Following adoption of court reform constitutional amendments in 1978, this responsibility was shifted to the Chief Administrative Judge.
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STATE OF NEW YORK ________________________________________________________________________ 3048 2017-2018 Regular Sessions IN ASSEMBLY January 25, 2017 ___________ Introduced by M. of A. LENTOL -- (at request of the Office of Court Administration) -- read once and referred to the Committee on Codes AN ACT to amend the county law, in relation to plans for representation of persons accused of a crime or certain parties in family court or surrogate's court The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraphs (b) and (c) of subdivision 3 of section 722 of 2 the county law, as amended by section 3 of part E of chapter 56 of the 3 laws of 2010, are amended to read as follows: 4 (b) Any plan of a bar association must receive the approval of the 5 [ state administrator] office of indigent legal services before the plan 6 is placed in operation. In the county of Hamilton, representation pursu- 7 ant to a plan of a bar association in accordance with subparagraph (i) 8 of paragraph (a) of this subdivision may be by counsel furnished by the 9 Fulton county bar association pursuant to a plan of the Fulton county 10 bar association, following approval of the [ state administrator] office 11 of indigent legal services. When considering approval of an office of 12 conflict defender pursuant to this section, the [ state administrator] 13 office of indigent legal services shall employ the guidelines it has 14 heretofore established [ by the office of indigent legal services] pursu- 15 ant to paragraph (d) of subdivision three of section eight hundred thir- 16 ty-two of the executive law. 17 (c) Any county operating an office of conflict defender, as described 18 in subparagraph (ii) of paragraph (a) of this subdivision, as of March 19 thirty-first, two thousand ten may continue to utilize the services 20 provided by such office provided that the county submits a plan to the 21 state administrator within one hundred eighty days after the promulga- 22 tion of criteria for the provision of conflict defender services by the 23 office of indigent legal services. The authority to operate such an 24 office pursuant to this paragraph shall expire when the state adminis- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08831-02-7A. 3048 2 1 trator (or, on or after April first, two thousand eighteen, the office 2 of indigent legal services) approves or disapproves such plan. Upon 3 approval, the county is authorized to operate such office in accordance 4 with paragraphs (a) and (b) of this subdivision. 5 § 2. Subdivision 3 of section 722 of the county law is amended by 6 adding a new paragraph (d) to read as follows: 7 (d) For purposes of this subdivision, any plan of a bar association 8 approved hereunder pursuant to this subdivision, as provided prior to 9 April first, two thousand eighteen, shall remain in effect until it is 10 superseded by a plan approved by the office of indigent legal services 11 or disapproved by such office. 12 § 3. Subdivision 1 and paragraph (a) of subdivision 2 of section 722-f 13 of the county law, subdivision 1 as added by chapter 761 of the laws of 14 1966 and as designated by section 4 of part J of chapter 62 of the laws 15 of 2003, and paragraph (a) of subdivision 2 as amended by section 1 of 16 part B of chapter 337 of the laws of 2016, are amended to read as 17 follows: 18 1. A public defender appointed pursuant to article eighteen-A of this 19 chapter, a private legal aid bureau or society designated by a county or 20 city pursuant to subdivision two of section seven hundred twenty-two of 21 this [ chapter] article, [ and] an administrator of a plan of a bar asso- 22 ciation appointed pursuant to subdivision three of section seven hundred 23 twenty-two of this [ chapter] article and an office of conflict defender 24 established pursuant to such subdivision shall file an annual report 25 with the [ judicial conference] chief administrator of the courts and the 26 office of indigent legal services. Such report shall be filed at such 27 times and in such detail and form as the [ judicial conference] office of 28 indigent legal services may direct. 29 (a) The county executive or chief executive officer of each county or, 30 in the case of a county wholly contained within a city, such city shall 31 file an annual report which specifies in detail and certifies to the 32 office of indigent legal services the total expenditures of such county 33 or city, identifying "local funds", as defined in paragraph (c) of 34 subdivision two of section ninety-eight-b of the state finance law, 35 state funds, federal funds and funds received from a "private source" as 36 described in subdivision two of section ninety-eight-b of the state 37 finance law, for providing legal representation to persons who were 38 financially unable to afford counsel, pursuant to this article. Such 39 annual report, a copy of which also shall be filed with the office of 40 indigent legal services, shall be made on a form developed for such 41 purpose by the office of indigent legal services. 42 § 4. This act shall take effect April 1, 2018.