Indigent Defense in N.Y. — A System in Crisis: Part 1

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By Lazar Emanuel
[Originally published in NYPRR October 2006]


(This is the first of a series of articles on the condition of New York’s system for providing counsel to indigent defendants.)

In February 2004, Chief Judge Judith S. Kaye appointed a Commission on the Future of Indigent Defense Services. The Commission secured the cooperation of the OCA in engaging the services of The Spangenberg Group (TSG) to undertake a statewide study of the New York indigent defense system. TSG has conducted research into indigent defense policies for 40 states and New York City. It is under contract to the ABA’s Standing Committee on Legal Aid and Indigent Defendants with the goal of providing support and technical assistance “to individuals and organizations working to improve their jurisdictions’ indigent defense systems.”

The Commission was chaired by William Hellerstein, Professor of Law at Brooklyn Law School and by Supreme Court Judge Burton B. Roberts. Both the Commission and TSG participated in public hearings throughout the State at which 93 individuals testified, and both conducted many interviews among key persons, including judges at many levels, lawyers and supervisors employed by institutional providers of legal services, 18-B attorneys and administrators, prosecutors, county personnel and lawyers in private practice. In all, TSG met with 350 people and conducted 78 days of site work.

TSG issued its Final Report to the Commission on June 16, 2006. The Commission followed with its Final Report to the Chief Judge on June 18, 2006. Both Reports sound the same alarm.

The Commission: “TSG’s massive and comprehensive study provides a true understanding of the depth and scope of the crisis in the delivery of defense services to impoverished defendants in New York’s criminal justice system. Therefore, we urge all who are concerned with this crisis to examine [The Spangenberg Report] closely. We do so at a time in New York’s history when there is a chorus of voices calling for extensive and meaningful change in the delivery of indigent defense services in New York in order to effectuate the mandates of the United States Constitution and the Constitution and laws of the State of New York.”

TSG: “New York’s indigent defense system is in a serious state of crisis. The “system” is a patchwork composite of multiple plans that provides inequitable services across the state to persons who are unable to afford counsel. … 62 counties have created their own systems that suffer from lack of uniformity [and] oversight and a chronic lack of funding. The result is a fractured, inefficient and broken system.”

Mandate for Indigent Legal Services

The mandate which ultimately led to the doctrine that all defendants are entitled to counsel when the consequence of a proceeding against them can be incarceration, a fine, a penalty for non-payment of a fine, or a similar deprivation of rights or property, is imbedded in the Sixth Amendment to the U. S. Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. [Emphasis added.]

The Sixth Amendment right to counsel was not extended to all state court proceedings until 1963, when the Supreme Court decided Gideon v. Wainwright, 372 U.S. 335. In Powell v. Alabama, 287 U.S. 45 (1932), the Court had decided that the states were bound to supply counsel only in cases involving capital crimes. Not until Johnson v. Zerbst, 304 U.S. 458 (1938), did the Court extend the requirement of counsel to all federal felony trials. In Betts v. Brady, 316 U.S. 455 (1942), the Court refused to extend Johnson to state felony trials not involving a capital crime.

Finally, in Gideon v. Wainwright, the Court bit the bullet and declared that the Sixth Amendment was applicable to criminal proceedings in state courts: “In our adversary system of criminal justice, any person haled into Court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

While the Supreme Court was grappling with these fundamental issues, the New York Legislature was gradually extending the right to counsel through a series of statutes. In 1881, the Legislature enacted a statute authorizing the courts to appoint counsel in felony cases, but compensation to counsel was limited to capital cases. In 1951, the Legislature authorized the counties to fund legal aid societies, and subsequently allowed them to establish public defender offices or to contract with legal aid societies to provide counsel.

In 1965, following Wainwright, the Court of Appeals decided People v. Witenski, 15 N.Y.2d 391. The court held that indigent defendants in all criminal cases, not only in felony cases, are entitled to representation by appointed counsel. The Court said:

…the right and duty of our courts, to assign counsel for the defense of destitute persons, indicted for crime, has been, by long and uniform practice, as firmly incorporated into the law of the state, as if it were made imperative by express enactment.

How System Works

The New York system for providing counsel to indigents is broader than the federal system in its interpretation of the proceedings to which the right to counsel extends. However, in any circumstance in which state law provides fewer rights than federal law, the federal law controls.

In New York, the right to counsel extends not only to felonies and misdemeanors, but also to other “offenses” that are chargeable in an accusatory instrument filed in any criminal court, whether or not incarceration is possible upon conviction. (Both the Criminal Procedure Law and Article 18-B of the County Law specifically exclude proceedings involving traffic violations, but the courts have extended the right to counsel to those proceedings as well. [People v. Weinstock, 80 Misc.2d 510 (1974).] In its Report, TSG says, however, “Unfortunately, we found that many local courts in New York are not complying with this requirement.”

The designation “offense” is defined by the Penal Law as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state.” Thus, as the TSG Report points out, the right to counsel extends also to local ordinances which provide only for a fine or other monetary penalty upon conviction. In extending the right to proceedings which involve only fines and monetary penalties, the state law is broader than the federal law, which limits the right to indigent defendants facing “actual or potential imprisonment.”

The TSG Report also cites an important inconsistency between the Criminal Procedure Law and the County Law. While the CPL extends the right to counsel to all criminal proceedings except those for traffic violations, the County Law [§722-a] provides for funds to counsel only in cases in which the defendant is subject to incarceration.

Family Court & Surrogate’s Court

New York has extended the right to counsel to various categories of people involved either in Family Court proceedings or in proceedings in the Surrogate’s Court. In both these courts, the state is obligated to provide and pay for counsel to an indigent party who is involved in the proceeding. All children involved in either court are presumptively eligible for counsel, who is appointed law guardian at the State’s expense.

In Family Court, a broad range of indigent parties is protected: the parent or other party being sued in a child protective proceeding when the state seeks removal of a child from a home; the defendant and complaining witness in a family offense or domestic violence proceeding; the parent or other custodial person in proceedings for termination of parental rights, adoption, guardianship and custody; the non-custodial parent or grandparent in a matter involving the transfer of a child’s care and custody; the parent in a child custody matter; any person facing an order of contempt or potential punishment for willful violation of a court order; the parent opposing an adoption; the person being sued in a paternity proceeding; and in any circumstance mandated by the state or federal constitution.

In addition, law guardians will be appointed and paid for by the state to represent minors in Family Court matters involving: juvenile delinquency; persons in need of supervision; proceedings to terminate or surrender parental rights; child protection proceedings; and dependency and foster care proceedings. Supreme Court judges may also appoint law guardians for children enmeshed in divorce proceedings in which issues of custody and visitation arise.


In theory, therefore, an indigent defendant in New York State can have the help of counsel in every proceeding — except, in some courts, proceedings involving traffic infractions — in which his life, liberty and/or property are threatened or at risk. The noble theory breaks down before the reality, however.

In reality, as both the Commission and TSG reported to the Chief Judge in June, New York’s present system is broken and in crisis: No state agency oversees or controls the system; the system is dangerously under-funded; the quality of counsel varies widely from county to county; lawyers for providers are untrained and overworked; many judges, especially in local courts, misunderstand or ignore defendants’ rights — on and on.

What have the other states done? And what did the Commission recommend for New York? Read Installment 2 in NYPRR Nov. 2006.

Lazar Emanuel is the publisher of NYPRR.

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

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