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S09452 Summary:

S09452 Actions:

S09452 Committee Votes:

S09452 Floor Votes:

S09452 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          9452
 
                    IN SENATE
 
                                      May 15, 2024
                                       ___________
 
        Introduced  by Sen. SALAZAR -- (at request of the Office of Court Admin-
          istration) -- read twice and ordered printed, and when printed  to  be
          committed to the Committee on Judiciary
 
        AN ACT to amend the civil practice law and rules and the criminal proce-
          dure  law,  in relation to the waiver of costs, fees, and expenses for
          persons of insufficient means and  to  eliminating  the  phrase  "poor
          person"
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The article heading of article 11 of the civil practice law
     2  and rules is amended to read as follows:
     3              [POOR PERSONS] WAIVER OF COSTS, FEES, AND EXPENSES
 
     4    § 2. The section heading and subdivision (a) of section  1101  of  the
     5  civil  practice  law and rules, as amended by chapter 216 of the laws of
     6  1992, are amended to read as follows:
     7    Motion [for permission to proceed as a poor person]  to  waive  costs,
     8  fees,  and  expenses;  affidavit  or  affirmation;  certificate; notice;
     9  [waiver of fee;] when motion not  required.  (a)  Motion;  affidavit  or
    10  affirmation.    Upon motion of any [person] party, the court in which an
    11  action is triable, or to which an appeal has been or will be taken,  may
    12  [grant permission] waive the costs, fees, and expenses if such party has
    13  insufficient  means  to [proceed as a poor person] pay such costs, fees,
    14  and expenses.  Where a motion [for leave] to [appeal as a  poor  person]
    15  waive  costs,  fees,  and  expenses is [brought to] made in the court in
    16  which an appeal has been or will be taken, such court  shall  hear  such
    17  motion on the merits and shall not remand such motion to the trial court
    18  for  consideration. The moving party shall file an affidavit or affirma-
    19  tion setting forth the amount and sources of [his or her]  such  party's
    20  income  and  assets  and listing [his or her] any real property owned by
    21  such party with its value; that [he or she is unable] such  party  lacks
    22  sufficient means to pay the costs, fees, and expenses necessary to pros-
    23  ecute  or defend the action or to maintain or respond to the appeal; the
    24  nature of the  action;  sufficient  facts  so  that  the  merit  of  the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14252-02-4
        S. 9452                             2

     1  contentions  can be ascertained; and whether any other person is benefi-
     2  cially interested in any recovery sought and, if so, whether every  such
     3  person  is  unable  to  pay such costs, fees, and expenses. An executor,
     4  administrator, or other representative may move for [permission] a waiv-
     5  er  of  costs,  fees,  and  expenses on behalf of a deceased, infant, or
     6  incompetent [poor] person.
     7    § 3. Section 1102 of the civil practice law and rules, subdivision (b)
     8  as amended by chapter 681 of the laws of 1969, and subdivisions (c)  and
     9  (d) as amended by chapter 773 of the laws of 1965, is amended to read as
    10  follows:
    11    §  1102.  Privileges of [poor person] party with insufficient means to
    12  pay costs, fees, and expenses in an action or on appeal.  (a)  Attorney.
    13  [The]  Where  a  court  grants  a  motion pursuant to subdivision (a) of
    14  section one thousand one hundred one of this article, the court, in  its
    15  order  [permitting a person to proceed as a poor person] determining the
    16  motion, may assign an attorney to the moving party.
    17    (b) Stenographic transcript. Where a  [party  has  been  permitted  by
    18  order  to  appeal  as]  court  grants a [poor person] motion pursuant to
    19  subdivision (a) of section one thousand one hundred one of this article,
    20  the court clerk, within two days after the filing of [said] such court's
    21  order with [him] the court clerk, shall so notify  the  court  stenogra-
    22  pher, who, within twenty days of such notification shall make and certi-
    23  fy two typewritten transcripts of the stenographic minutes of said trial
    24  or  hearing,  and  shall  deliver  one  of said transcripts to the [poor
    25  person] moving party or [his] such moving party's attorney, and file the
    26  other with the court clerk together with an affidavit of  the  fact  and
    27  date  of such delivery and filing. The expense of such transcripts shall
    28  be a county charge or, in the counties within the city of  New  York,  a
    29  city  charge, as the case may be, payable to the stenographer out of the
    30  court fund upon the certificate of the judge presiding at the  trial  or
    31  hearing.    A  [poor person] moving party may be furnished with a steno-
    32  graphic transcript without fee by order  of  the  court  in  proceedings
    33  other  than appeal, the fee therefor to be paid by the county or, in the
    34  counties within the city of New York by the city, as the case may be, in
    35  the same manner as is paid for transcripts  on  appeal.  Notwithstanding
    36  this  or  any  other  provision of law, fees paid for stenographic tran-
    37  scripts with respect to those proceedings specified in paragraph [(a)] a
    38  of subdivision one of section thirty-five of the judiciary law shall  be
    39  paid  by  the  state  in  the  manner  prescribed by subdivision four of
    40  section thirty-five of the judiciary law.
    41    (c) Appeals. On an appeal or motion for permission to appeal  where  a
    42  [poor  person]  court  grants  a  motion  pursuant to subdivision (a) of
    43  section one thousand one hundred one of this article, the  moving  party
    44  may  submit  typewritten  briefs  and appendices, furnishing one legible
    45  copy for each appellate justice.
    46    (d) Costs and fees. [A poor person] Where  a  court  grants  a  motion
    47  pursuant  to  subdivision (a) of section one thousand one hundred one of
    48  this article, the moving party shall not be liable for  the  payment  of
    49  any  costs or fees unless a recovery by judgment or by settlement is had
    50  in [his] such moving party's favor, in which event the court may  direct
    51  [him] such party to pay out of the recovery all or part of the costs and
    52  fees, a reasonable sum for the services and expenses of [his] any attor-
    53  ney  assigned  to  such party and any sum expended by the county or city
    54  under subdivision (b) of this section.
    55    § 4. Section 1103 of the civil practice law and rules  is  amended  to
    56  read as follows:
        S. 9452                             3
 
     1    §  1103. Distribution of recovery in favor of [poor person] party with
     2  insufficient means to pay costs, fees, and expenses. [Any] Where a court
     3  grants a motion pursuant to subdivision (a) of section one thousand  one
     4  hundred  one  of this article, recovery by judgment or by settlement had
     5  in favor of [a poor person,] the moving party shall be paid to the clerk
     6  of  the court in which the order [permitting] determining the [person to
     7  proceed as a poor person] motion  was  entered,  to  await  distribution
     8  pursuant to court order.
     9    §  5.  The  section heading and subdivision 1 of section 380.55 of the
    10  criminal procedure law, as amended by chapter 616 of the laws  of  2021,
    11  are amended to read as follows:
    12  Application for [poor person relief] waiver of costs, fees, and expenses
    13             on appeal.
    14    1. Where counsel has been assigned to represent a defendant in a crim-
    15  inal  action  on  the ground that the defendant is financially unable to
    16  retain counsel, the court may in its discretion at the time of  sentenc-
    17  ing entertain an application to grant the defendant [poor person relief]
    18  waiver of costs, fees, and expenses on appeal. As part of an application
    19  for  such  relief,  assigned  counsel  must represent that the defendant
    20  continues to be eligible for assignment of counsel and that granting the
    21  application will expedite the appeal. If the court grants  the  applica-
    22  tion,  it  shall  file  a  written order and shall provide a copy of the
    23  order to the appropriate appellate court. The denial of  an  application
    24  shall  not  preclude the defendant from making a de novo application for
    25  [poor person relief] waiver of costs, fees, and expenses to  the  appro-
    26  priate appellate court.
    27    § 6. This act shall take effect immediately.