S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6341

                            I N  S E N A T E

                               (PREFILED)

                             January 6, 2016
                               ___________

Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
  when printed to be committed to the Committee on Local Government

AN ACT to amend the county law and the executive  law,  in  relation  to
  indigent defense services

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative findings and declaration. It is  a  fundamental
right  of  all persons in the United States to be represented by counsel
in all criminal prosecutions. In the case of GIDEON V.  WAINWRIGHT,  372
U.S.  335,  the  United States Supreme Court ruled that indigent persons
accused in state felony cases who were unable to afford  counsel  had  a
constitutional right to be defended by an appointed attorney paid by the
state.  Subsequently, the Supreme Court determined that indigent persons
accused of any criminal charge that could result in imprisonment, wheth-
er a felony or misdemeanor, are entitled to counsel at  the  expense  of
the state.
  New  York state has chosen to fulfill its obligation to provide repre-
sentation to indigent persons accused of a crime by requiring each coun-
ty outside New York city and New York city to implement and fund a  plan
to  provide such representation. In 2006 the Commission on the Future of
Indigent Legal Services concluded that a system of county  operated  and
funded  indigent  defense  services failed to satisfy the constitutional
obligation to protect the rights of indigent persons accused of a crime.
Such Commission recommended that funding  for  indigent  legal  services
come from the State's general fund rather than from the counties.
  New  York state has entered into an agreement to settle a class action
lawsuit that alleged deprivation of the right to counsel in  five  coun-
ties.  The  agreement  acknowledges  that  the  Office of Indigent Legal
Services and the Indigent Legal Services Board are authorized "to  moni-
tor  and  study indigent legal services in the state, to recommend meas-
ures to improve those services, to award grant  monies  to  counties  to
support  their  indigent  representation  capability,  and  to establish
criteria for the distribution  of  such  funds."  While  the  settlement

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                      [ ] is old law to be omitted.
                                                           LBD06929-05-5

S. 6341                             2

agreement pertains to only five counties, its criteria establish a stan-
dard for providing indigent legal services that should apply statewide.
  The  legislature  finds  and declares that in all criminal proceedings
against people unable to afford counsel, New  York  state  is  constitu-
tionally  required  to  provide public defense services. The legislature
further finds that the state is obligated to  undertake  initiatives  to
improve  the  quality  of  indigent  defense,  ensure  representation at
arraignment, implement caseload  standards  for  providers  of  indigent
legal services, and implement statewide standards for determining eligi-
bility  for  mandated  representation. Mandating counties to finance the
state's obligation to provide indigent legal services imposes a  signif-
icant  uncontrollable  financial  burden  on  counties dependent on real
property taxes to fund needed services, and subject to a  state  imposed
tax cap.
  The  legislature  finds  and  declares  that  in  order to fulfill its
constitutional obligation to provide indigent legal services, the  state
shall  pay  counties the full amount necessary to ensure the delivery of
quality legal services for indigent criminal defendants in a  consistent
manner throughout the State.
  S  2.  Section 722-e of the county law, as added by chapter 878 of the
laws of 1965, is amended to read as follows:
  S 722-e. Expenses. All expenses for  providing  counsel  and  services
other  than counsel hereunder shall be a county charge or in the case of
a county wholly located within a city a city charge to be paid out of an
appropriation for such purposes AND SHALL BE REIMBURSED BY THE STATE  TO
THE  COUNTY  OR CITY PROVIDING SUCH SERVICES, PROVIDED, HOWEVER, THAT IN
THE STATE FISCAL YEAR BEGINNING:
  (A) APRIL  FIRST,  TWO  THOUSAND  SIXTEEN,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT  FOR  NOT  LESS THAN TWENTY-FIVE PERCENT OF SUCH EXPENSES;
AND
  (B) APRIL FIRST, TWO  THOUSAND  SEVENTEEN,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT FOR NOT LESS THAN FIFTY PERCENT OF SUCH EXPENSES; AND
  (C)  APRIL  FIRST,  TWO  THOUSAND  EIGHTEEN,  THE  STATE SHALL PROVIDE
REIMBURSEMENT FOR NOT LESS THAN SEVENTY-FIVE PERCENT OF  SUCH  EXPENSES;
AND
  (D)  EVERY  YEAR THEREAFTER, THE STATE SHALL PROVIDE REIMBURSEMENT FOR
THE FULL AMOUNT OF SUCH EXPENSES.
  S 3. Subdivision 3 of section 832 of the executive law is  amended  by
adding a new paragraph (o) to read as follows:
  (O)  TO  ADOPT,  PROMULGATE, AMEND OR RESCIND RULES AND REGULATIONS TO
CARRY OUT THE PROVISIONS OF THIS SECTION, INCLUDING TO  (I)  ENSURE  THE
PRESENCE  OF  COUNSEL  AT THE FIRST APPEARANCE OF ANY ELIGIBLE DEFENDANT
CHARGED WITH A CRIME, (II) ESTABLISH CASELOAD/WORKLOAD  REGULATIONS  FOR
ATTORNEYS  PROVIDING  MANDATED  REPRESENTATION THAT ALLOW FOR MEANINGFUL
AND EFFECTIVE ASSISTANCE OF COUNSEL, AND (III) IMPROVE  THE  QUALITY  OF
MANDATED REPRESENTATION.
  S  4.  Paragraphs  (l)  and (m) of subdivision 3 of section 832 of the
executive law, as added by section 1 of part E of chapter 56 of the laws
of 2010, are amended and a  new  paragraph  (n)  is  added  to  read  as
follows:
  (l)  to present findings and make recommendations for consideration by
the indigent legal services board established pursuant to section  eight
hundred thirty-three of this article; [and]
  (m)  to  execute decisions of the indigent legal services board estab-
lished pursuant to section eight hundred thirty-three of  this  article,
including the distribution of funds[.];

S. 6341                             3

  (N)  TO REVIEW THE PUBLIC DEFENSE OPERATIONS OF ANY COUNTY FOR COMPLI-
ANCE WITH APPLICABLE PROFESSIONAL STANDARDS PROMULGATED  BY  THE  OFFICE
AND  TO  ENSURE THAT RECIPIENTS OF SERVICES PROVIDED PURSUANT TO ARTICLE
EIGHTEEN-B OF THE COUNTY LAW ARE PROVIDED WITH MEANINGFUL AND  EFFECTIVE
REPRESENTATION  BEFORE  MAKING  REIMBURSEMENT  PURSUANT TO SECTION SEVEN
HUNDRED TWENTY-TWO-E OF THE COUNTY LAW; AND
  S 5. This act shall take effect immediately.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 6341--B

                            I N  S E N A T E

                               (PREFILED)

                             January 6, 2016
                               ___________

Introduced by Sens. DeFRANCISCO, AKSHAR, AMEDORE, BRESLIN, COMRIE, GRIF-
  FO,  HASSELL-THOMPSON,  KAMINSKY,  LATIMER, LITTLE, MARCHIONE, MURPHY,
  O'MARA, RANZENHOFER, RITCHIE, SERINO, SEWARD, VALESKY  --  read  twice
  and ordered printed, and when printed to be committed to the Committee
  on  Local  Government  --  committee discharged, bill amended, ordered
  reprinted as amended and recommitted to  said  committee  --  reported
  favorably  from  said  committee  and  committed  to  the Committee on
  Finance -- committee discharged, bill amended,  ordered  reprinted  as
  amended and recommitted to said committee

AN  ACT to amend the county law, the executive law and the state finance
  law, in relation to indigent defense services

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Legislative findings and declaration. It is a fundamental
right of all persons in the United States to be represented  by  counsel
in  all criminal prosecutions. In the case of GIDEON V.  WAINWRIGHT, 372
U.S. 335, the United States Supreme Court ruled  that  indigent  persons
accused  in  state  felony cases who were unable to afford counsel had a
constitutional right to be defended by an appointed attorney paid by the
state. Subsequently, the Supreme Court determined that indigent  persons
accused of any criminal charge that could result in imprisonment, wheth-
er  a  felony  or misdemeanor, are entitled to counsel at the expense of
the state.
  New York state has chosen to fulfill its obligation to provide  repre-
sentation to indigent persons accused of a crime by requiring each coun-
ty  outside New York city and New York city to implement and fund a plan
to provide such representation. In 2006 the Commission on the Future  of
Indigent  Legal  Services concluded that a system of county operated and
funded indigent defense services failed to  satisfy  the  constitutional
obligation to protect the rights of indigent persons accused of a crime.
Such  Commission  recommended  that  funding for indigent legal services
come from the State's general fund rather than from the counties.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD06929-11-6

S. 6341--B                          2

  New York state has entered into an agreement to settle a class  action
lawsuit  that  alleged deprivation of the right to counsel in five coun-
ties. The agreement acknowledges  that  the  Office  of  Indigent  Legal
Services  and the Indigent Legal Services Board are authorized "to moni-
tor  and  study indigent legal services in the state, to recommend meas-
ures to improve those services, to award grant  monies  to  counties  to
support  their  indigent  representation  capability,  and  to establish
criteria for the distribution  of  such  funds."  While  the  settlement
agreement pertains to only five counties, its criteria establish a stan-
dard for providing indigent legal services that should apply statewide.
  The  legislature  finds  and declares that in all criminal proceedings
against people unable to afford counsel, New  York  state  is  constitu-
tionally  required  to  provide public defense services. The legislature
further finds that the state is obligated to  undertake  initiatives  to
improve  the  quality  of  indigent  defense,  ensure  representation at
arraignment, implement caseload  standards  for  providers  of  indigent
legal services, and implement statewide standards for determining eligi-
bility  for  mandated  representation. Mandating counties to finance the
state's obligation to provide indigent legal services imposes a  signif-
icant  uncontrollable  financial  burden  on  counties dependent on real
property taxes to fund needed services, and subject to a  state  imposed
tax cap.
  The  legislature  finds  and  declares  that  in  order to fulfill its
constitutional obligation to provide indigent legal services, the  state
shall  pay  counties the full amount necessary to ensure the delivery of
quality legal services for indigent criminal defendants in a  consistent
manner throughout the State.
  S  2.  Section 722-e of the county law, as added by chapter 878 of the
laws of 1965, is amended to read as follows:
  S 722-e. Expenses. All expenses for  providing  counsel  and  services
other  than counsel hereunder shall be a county charge or in the case of
a county wholly located within a city a city charge to be paid out of an
appropriation for such purposes AND SHALL BE REIMBURSED BY THE STATE  TO
THE  COUNTY  OR CITY PROVIDING SUCH SERVICES, PROVIDED, HOWEVER, THAT IN
THE STATE FISCAL YEAR BEGINNING:
  (A) APRIL FIRST, TWO  THOUSAND  SEVENTEEN,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT  FOR  NOT  LESS THAN TWENTY-FIVE PERCENT OF SUCH EXPENSES;
AND
  (B) APRIL FIRST,  TWO  THOUSAND  EIGHTEEN,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT  FOR  NOT  LESS THAN THIRTY-FIVE PERCENT OF SUCH EXPENSES;
AND
  (C) APRIL FIRST,  TWO  THOUSAND  NINETEEN,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT FOR NOT LESS THAN FORTY-FIVE PERCENT OF SUCH EXPENSES; AND
  (D)  APRIL  FIRST,  TWO  THOUSAND  TWENTY,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT FOR NOT LESS THAN FIFTY-FIVE PERCENT OF SUCH EXPENSES; AND
  (E) APRIL FIRST, TWO THOUSAND  TWENTY-ONE,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT FOR NOT LESS THAN SIXTY-FIVE PERCENT OF SUCH EXPENSES; AND
  (F)  APRIL  FIRST,  TWO  THOUSAND  TWENTY-TWO, THE STATE SHALL PROVIDE
REIMBURSEMENT FOR NOT LESS THAN SEVENTY-FIVE PERCENT OF  SUCH  EXPENSES;
AND
  (G)  EVERY  YEAR THEREAFTER, THE STATE SHALL PROVIDE REIMBURSEMENT FOR
THE FULL AMOUNT OF SUCH EXPENSES.
  S 3. Subdivision 3 of section 832 of the executive law is  amended  by
adding a new paragraph (o) to read as follows:
  (O)  TO  ADOPT,  PROMULGATE, AMEND OR RESCIND RULES AND REGULATIONS TO
CARRY OUT THE PROVISIONS OF THIS SECTION, INCLUDING TO  (I)  ENSURE  THE

S. 6341--B                          3

PRESENCE  OF  COUNSEL  AT THE FIRST APPEARANCE OF ANY ELIGIBLE DEFENDANT
CHARGED WITH A CRIME, (II) ESTABLISH CASELOAD/WORKLOAD  REGULATIONS  FOR
ATTORNEYS  PROVIDING  MANDATED  REPRESENTATION THAT ALLOW FOR MEANINGFUL
AND  EFFECTIVE  ASSISTANCE  OF COUNSEL, AND (III) IMPROVE THE QUALITY OF
MANDATED REPRESENTATION.
  S 4. Paragraphs (l) and (m) of subdivision 3 of  section  832  of  the
executive law, as added by section 1 of part E of chapter 56 of the laws
of  2010,  are  amended  and  a  new  paragraph  (n) is added to read as
follows:
  (l) to present findings and make recommendations for consideration  by
the  indigent legal services board established pursuant to section eight
hundred thirty-three of this article; [and]
  (m) to execute decisions of the indigent legal services  board  estab-
lished  pursuant  to section eight hundred thirty-three of this article,
including the distribution of funds[.];
  (N) TO REVIEW THE PUBLIC DEFENSE OPERATIONS OF ANY COUNTY FOR  COMPLI-
ANCE  WITH  APPLICABLE  PROFESSIONAL STANDARDS PROMULGATED BY THE OFFICE
AND TO ENSURE THAT RECIPIENTS OF SERVICES PROVIDED PURSUANT  TO  ARTICLE
EIGHTEEN-B  OF THE COUNTY LAW ARE PROVIDED WITH MEANINGFUL AND EFFECTIVE
REPRESENTATION BEFORE MAKING REIMBURSEMENT  PURSUANT  TO  SECTION  SEVEN
HUNDRED  TWENTY-TWO-E OF THE COUNTY LAW AND BEFORE MAKING PAYMENT PURSU-
ANT TO PARAGRAPH (B) OF SUBDIVISION THREE OF SECTION  NINETY-EIGHT-B  OF
THE STATE FINANCE LAW; AND
  S  5.  Subdivision  3  of  section  98-b  of the state finance law, as
amended by section 2 of part E of chapter 56 of the  laws  of  2010,  is
amended to read as follows:
  3.  Amounts  distributed  from  such  fund shall be limited to amounts
appropriated therefor and shall be distributed as follows:
  (a) The office of court administration may expend  a  portion  of  the
funds available in such fund to provide assigned counsel paid in accord-
ance  with section thirty-five of the judiciary law, up to an annual sum
of twenty-five million dollars.
  (b) [An] IN ADDITION TO THE AMOUNTS PAID TO EACH COUNTY AND  THE  CITY
OF NEW YORK PURSUANT TO SECTION SEVEN HUNDRED TWENTY-TWO-E OF THE COUNTY
LAW  AND  IN ACCORDANCE WITH SECTIONS EIGHT HUNDRED THIRTY-TWO AND EIGHT
HUNDRED THIRTY-THREE OF THE EXECUTIVE LAW AN  annual  amount  [of  forty
million  dollars  shall  be  made available to the city of New York from
such fund for the provision of services pursuant to  article  eighteen-B
of  the county law; provided that the city of New York shall continue to
provide at minimum the aggregate amount of funding  for  public  defense
services  including,  but  not  limited  to,  the  amount of funding for
contractors of public defense services and individual defense attorneys,
that it provided, pursuant to  article  eighteen-B  of  the  county  law
during  its  two  thousand  nine--two thousand ten fiscal year] SHALL BE
PAID TO SUCH COUNTIES AND CITY EQUAL TO THE AMOUNT PAID FROM  SUCH  FUND
TO SUCH COUNTIES AND CITY IN MARCH TWO THOUSAND TEN.
  (c)  [Within the first fifteen days of March two thousand eleven, each
county other than a county wholly contained within the city of New York,
shall receive ninety percent of the amount paid to such county in  March
two  thousand  ten.  Within the first fifteen days of March two thousand
twelve, each county other than a county wholly contained within the city
of New York shall receive seventy-five percent of  the  amount  paid  to
such  county in March two thousand ten. Within the first fifteen days of
March two thousand thirteen, each county  other  than  a  county  wholly
contained within the city of New York shall receive fifty percent of the
amount  paid  to such county in March two thousand ten. Within the first

S. 6341--B                          4

fifteen days of March two thousand fourteen, each county  other  than  a
county  wholly contained within the city of New York shall receive twen-
ty-five percent of the amount paid to such county in March two  thousand
ten. For all state fiscal years following the two thousand thirteen--two
thousand  fourteen  fiscal  year,  there  shall  be  no  required annual
payments pursuant to this paragraph. Notwithstanding the  provisions  of
this  paragraph, for each of the four required payments made to counties
within the first fifteen days of March two thousand eleven, two thousand
twelve, two thousand thirteen and two thousand  fourteen,  Hamilton  and
Orleans  counties  shall  receive  such percentage payments based on the
amounts that each county would have received in March two  thousand  ten
had  it  satisfied  the  maintenance  of effort requirement set forth in
paragraph (c) of subdivision four of this  section  in  effect  on  such
date.
  (d)]  Remaining  amounts within such fund, after accounting for annual
payments required in paragraphs (a)[,] AND (b) [and (c)] of this  subdi-
vision  and  subparagraph  (iii)  of paragraph (a) of subdivision two of
this section shall be distributed  in  accordance  with  sections  eight
hundred thirty-two and eight hundred thirty-three of the executive law.
  S 6. This act shall take effect April 1, 2017.