fees to reasonable levels. Local property owners should be given some
relief from the obligation of providing public defense services.
The legislature further finds that no mechanism currently exists for
state oversight of the provision of public defense services, despite its
character as a state mandate and the appropriation of some state funds
to support public defense services. Sound fiscal and governmental policy
requires oversight of defense services to ensure that the state mandate
is being met, and to determine the most effective and efficient future
allocation of state funds. Certain defense services can most efficiently
and effectively be provided by an independent commission. Some locali-
ties, especially those with smaller populations, could benefit by a
mechanism for delivering defense services directly by the state.
The legislature further finds that public defense services must be
provided in a manner that ensures the independence of public defense
providers.
Therefore, to address these needs, the legislature establishes in this
act the New York state public defense commission to oversee public
defense services in this state, reimburse localities for public defense
expenditures, and provide defense services in extraordinary circum-
stances.
§ 2. Short title. This act shall be known and may be cited as the "New
York state public defense commission act".
§ 3. Definitions. As used in this act, the following terms are defined
as follows:
1. "Client" means a person who is currently receiving or received in
the past public defense services.
2. "Client community" means clients, their families, geographic neigh-
borhoods in which a significant number of clients live, and organiza-
tions dedicated to providing support and/or advocacy to clients and
their families and neighborhoods.
3. "Commission" means the New York state public defense commission
established pursuant to section four of this act.
4. "Committee" shall mean the nominating committee established pursu-
ant to section five of this act.
5. "Director" shall mean the director of public defense services
appointed pursuant to section six of this act.
6. "Eligible person" means any person financially unable to obtain
counsel and/or afford the necessary expenses of representation, when
such person is suspected or accused of, charged with, or convicted of
committing an offense, or is a party in family court, surrogate's court
or other proceedings, and is entitled to counsel by law.
7. "Locality" means a county, except that within any county in the
city of New York such term shall mean the city of New York.
8. "Public defense services" or "defense services" means publicly
financed legal representation, including the services of an attorney and
all necessary ancillary services, provided to persons financially unable
to obtain counsel and/or afford the necessary expenses of represen-
tation, when such persons are suspected or accused of, charged with, or
convicted of committing an offense, or are parties in family court,
surrogate's court or other proceedings, and are entitled to counsel by
law.
§ 4. New York state public defense commission. 1. There is hereby
established the New York state public defense commission, a body corpo-
rate and public constituting a public benefit corporation. The commis-
sion shall be composed of thirteen members.
2. a. The members of the commission shall be appointed as follows:
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(i) seven members shall be appointed by the governor in accordance
with the provisions of paragraph c of this subdivision;
(ii) one member shall be appointed by the temporary president of the
senate;
(iii) one member shall be appointed by the speaker of the assembly;
(iv) one member shall be appointed by the minority leader of the
senate;
(v) one member shall be appointed by the minority leader of the assem-
bly;
(vi) one member shall be appointed by the chief judge of the court of
appeals; and
(vii) one member shall be appointed by the administrative board of the
courts.
b. No member of the commission shall be a judge, prosecutor, law
enforcement officer or employee thereof, or public official, unless such
official is engaged exclusively in providing and/or administering public
defense services.
c. (i) Five of the seven members appointed by the governor shall be
appointed as follows:
(A) one with the qualifications enumerated in paragraph a of subdivi-
sion three of section five of this act, shall be appointed upon the
recommendation of the New York State Association of Criminal Defense
Lawyers;
(B) one with the qualifications enumerated in paragraph b of subdivi-
sion three of section five of this act, shall be appointed upon the
recommendation of the Vera Institute of Justice;
(C) one with the qualifications enumerated in paragraph c of subdivi-
sion three of section five of this act, shall be appointed upon the
recommendation of the Community Action Association of New York;
(D) one with the qualifications enumerated in paragraph d of subdivi-
sion three of section five of this act, shall be appointed upon the
recommendation of the New York State Defenders Association; and
(E) one with the qualifications enumerated in paragraph e of subdivi-
sion three of section five of this act, shall be appointed upon the
recommendation of the New York State Bar Association.
(ii) In the case of members to be appointed pursuant to subparagraph
(i) of this paragraph, the governor may request the provision of addi-
tional recommended qualified candidates from the appropriate recommend-
ing entity. The two members of the commission appointed solely by the
governor and all other members appointed by the other appointing author-
ities shall be selected from the pool of candidates provided by the
committee pursuant to section five of this act. A majority of the
members of the commission shall be attorneys admitted to practice in
this state.
d. The members of the commission shall serve terms of four years;
provided, however, that the members initially appointed shall serve the
following terms:
(i) two members appointed by the governor, two years;
(ii) two members appointed by the governor, and the members appointed
by the chief judge of the court of appeals and the administrative board
of the courts, three years; and
(iii) all remaining members, four years.
All members may be reappointed to additional terms and shall serve
until their successors are appointed. Vacancies on the commission shall
be filled for the remainder of the term in the manner provided for by
the original appointment.
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3. The members of the commission shall receive no compensation for
their services, but shall be allowed their actual and necessary expenses
incurred in the performance of their duties.
4. The powers of the corporation shall be vested in and shall be exer-
cised by the commission at any meeting duly called and held where a
quorum of eight members is present. No action shall be taken by the
commission except pursuant to the favorable vote of at least seven
members present at the meeting at which such action is taken.
5. Any action required or permitted to be taken by the commission or
any committee thereof may be taken without a meeting if all members of
the commission or the committee consent in writing to the adoption of a
resolution authorizing such action. The resolution and the written
consents thereto by the members of the commission or committee shall be
filed with the minutes of the proceedings of the commission or commit-
tee.
6. The members of the commission or any committee thereof may partic-
ipate in a meeting of such commission or committee by means of a confer-
ence telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time;
participation by such means shall constitute presence in person at such
meeting.
7. The commission shall establish an advisory committee representative
of public defenders, attorneys-in-charge of private legal aid bureaus or
societies and not-for-profit corporations, voluntary associations,
organizations providing public defense services, and assigned counsel
administrators in all areas of the state.
§ 5. Nominating committee. 1. There is hereby established the public
defense commission nominating committee. Such committee shall be
composed of eleven members as follows:
a. the commissioner of criminal justice services, or his or her desig-
nee;
b. a representative of the New York State Association of Counties;
c. a representative of the New York State Bar Association;
d. a representative of the Vera Institute of Justice;
e. a representative of the Community Action Association of New York;
f. a representative of the Fund for Modern Courts;
g. a representative of the Puerto Rican Legal Defense and Education
Fund;
h. a representative of the National Association for the Advancement of
Colored People Legal Defense and Educational Fund;
i. a representative of the New York State Association of Criminal
Defense Lawyers;
j. a representative of the New York State Defenders Association; and
k. the president or chief executive officer of the League of Women
Voters of New York state, or their designee, who shall chair the commit-
tee.
2. The committee shall deliberate upon and apply the categories estab-
lished in subdivision three of this section to select and maintain a
pool of not less than twenty nor more than thirty-five qualified candi-
dates for appointment to the commission. In such selection, it shall
take into account the need for broad representation reflecting the
geographic, racial, ethnic, gender and cultural diversity of the state's
public defense clients. Organizations including, but not limited to, the
following shall be solicited on a need basis to recommend candidates:
a. entities or plans providing public defense services and related
human services;
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b. professional legal organizations, including bar associations; and
c. social justice organizations and civic organizations, especially
organizations composed of or concerned with persons or groups who have
been public defense clients and communities that include a high percent-
age of public defense clients.
The committee shall meet biennially to select a new pool of candidates
which may include candidates selected for previous pools. The League of
Women Voters of New York State shall be entitled to reasonable expenses
incurred in organizing the work of the committee.
3. The following shall be the categories of qualifications that the
nominating committee shall utilize in nominating candidates for the
commission:
a. experienced and distinguished trial and appellate criminal defense
practitioners with a demonstrated and deep-rooted sensitivity to the
complex issues affecting people in poverty and a proven commitment to
enhancing the constitutional rights of clients and the client community;
b. persons with established credentials that demonstrate the ability
to make innovations designed to conserve public resources while enhanc-
ing legal or other human services to low income clients in the criminal
justice system;
c. former consumers of public defense services who, having been exon-
erated or having paid their debt to society by service of a sentence,
have demonstrated a commitment to the improvement of legal services for
those unable to afford counsel;
d. persons with a proven commitment to enhancing the constitutional
rights of low income clients and who administer or have administered a
public defense system in this state or a state public defense system in
one of the United States of America whose experience can aid New York in
formulating an organized statewide approach to ensuring quality local
defense services; and
e. lawyers from moderate to large sized general practice law firms
with an established and demonstrated commitment to resolving problems
associated with the representation of low income people whose experience
in the representation of clients can enhance the ability of public
sector lawyers to take advantage of private sector firm management tech-
niques.
§ 6. Director of public defense services. The commission shall appoint
a full time director of public defense services who shall be the chief
administrative officer of the commission. The director shall be commit-
ted to the professional representation of low income people, admitted or
eligible and willing to seek admission to the practice of law in this
state, have significant experience as an administrator of or practition-
er in a public defense program or service and be appointed for a renewa-
ble term of four years. The salary of the director shall be not less
than the salary of the highest paid district attorney in the state.
§ 7. General powers of the commission. The commission shall have
power:
1. to sue and be sued, and to participate in actions and proceedings,
whether judicial, administrative, arbitrative or otherwise;
2. to have a corporate seal, to alter such seal at pleasure, and to
use it by causing it or a facsimile to be affixed or impressed or
reproduced in any other manner;
3. to purchase, receive, take by grant, gift, devise, bequest or
otherwise, lease, otherwise acquire, own, hold, improve, employ, use,
and otherwise deal in and with real or personal property, or any inter-
est therein, wherever situated;
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4. to purchase, take, receive, subscribe for, otherwise acquire, own,
hold, vote, employ, sell, lend, lease, exchange, transfer, otherwise
dispose of, mortgage, pledge, use, and otherwise deal in and with bonds
and other obligations, shares, or other securities or interests issued
by others, whether engaged in similar or different business, govern-
mental or other activities;
5. to offer participation in the New York state and local employees'
retirement system for all its officers and employees, and to establish
and carry out other retirement plans authorized pursuant to the retire-
ment and social security law, which may be offered to all of its offi-
cers and employees not participating in the New York state and local
employees' retirement systems, and to establish and carry out other
incentive and benefit plans, trusts and provisions for any or all of its
officers and employees, subject to the applicable provisions of article
fourteen of the civil service law;
6. to fix, compromise and collect rates, rentals, fees, lease payments
and other charges for the services rendered by it or for use of the
facilities owned, controlled or administered by, or in the exercise of
the powers of the commission;
7. to conduct the activities of the commission and have offices and
exercise the powers granted by this act but not to interfere with the
professional responsibilities of any attorney to any client absent a
clear violation by the attorney of the disciplinary rules of the code of
professional responsibility set out in part 1200 of title 22 of the New
York codes, rules and regulations;
8. to appoint such officers, employees and agents as the commission
may require for the performance of its duties and to fix and determine
their qualifications, duties and compensation;
9. to retain or employ counsel, auditors and other private consultants
on a contract basis or otherwise for rendering professional, management
or technical services and advice;
10. to make, adopt, amend, enforce and repeal rules for its governance
and internal management and personnel practices;
11. to make and alter by-laws for its organization and management;
12. to designate the depositories of its money;
13. to establish its fiscal year; and
14. to do all things necessary, convenient or desirable, including
ancillary and incidental activities, to carry out its purposes and for
the exercise of the powers granted in this act.
§ 8. Public defense services standards. The commission shall adopt,
maintain and publish standards for the provision of public defense
services. Such standards shall reflect national professional guidelines
and standards in the field and shall include, but not be limited to:
1. independence of the defense function and quality of defense
services;
2. reliability and sufficiency of defense funding;
3. vertical or continuous representation at the pre-trial and trial
stages by the attorney either assigned or appointed, unless the client
would demonstrably benefit from a change in counsel;
4. required participation by each attorney in approved training in the
fundamentals and/or advanced techniques of criminal defense practice;
5. specified caseload/workload limitation levels;
6. investigative services;
7. the provision of social services or social services referrals;
8. availability of expert witnesses to assist counsel;
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9. clerical assistance, interview facilities and the availability of
law library and research materials to counsel; and
10. adequate supervision provided by experienced attorneys including
mentoring to less experienced attorneys.
§ 9. State financial assistance to localities and public defense
providers for provision of public defense services. 1. Within amounts
appropriated therefor, such moneys as are reasonable and necessary for
the commission to operate and to pay the state financial assistance
provided for in this act shall be disbursed to the commission.
2. Within funds appropriated therefor, the commission shall adopt a
plan for state financial assistance to localities for the provision of
public defense services.
3. A locality may apply to the commission for state financial assist-
ance for defense services, or may elect to allow public defense provid-
ers that receive local funds to seek state financial assistance direct-
ly. To receive full state financial assistance pursuant to this section
for the provision of defense services after the adoption by the commis-
sion of standards for the provision of defense services pursuant to
section eight of this act, a locality or provider shall demonstrate to
the commission that it meets such standards; provided, however, that
from the effective date of this act until one year after the promulga-
tion of the public defense services standards, pursuant to section eight
of this act, compliance shall be presumed.
4. Localities providing defense services, in whole or in part, pursu-
ant to a plan of a bar association whereby the services of private coun-
sel are rotated and coordinated by an administrator, pursuant to subdi-
vision 3 or subdivision 4 of section 722 of the county law and
localities providing defense services, in whole or in part, through
representation by a public defender appointed pursuant to article 18-A
of the county law or representation by counsel furnished by a private
legal aid bureau or society designated by the county or city, or by any
not-for-profit corporation, voluntary association, or organization
pursuant to subdivisions 1 and 2 of section 722 of the county law, may
receive state financial assistance in an amount up to forty percent of
the cost of such representation.
5. Financial assistance for defense services in the amount determined
by the commission shall be a state charge payable on vouchers approved
by the director of defense services after audit, within the restrictions
of subdivision one of section sixteen of this act, by and on the warrant
of the comptroller.
6. Any locality or provider receiving payments pursuant to the
provisions of this section shall be obligated to expend local funds for
defense services in the year it receives state assistance in an amount
not less than the total amount it expended for defense services in the
preceding year unless it can demonstrate to the commission that it has
maintained or improved the quality of defense services with less expend-
iture of funds.
§ 10. Provision of defense services. The commission may establish the
capability to provide defense services to public defense clients at the
request of judges, public defense providers or local governments. Such
services shall be provided pursuant to contract between the director and
the public provider or locality.
§ 11. Guidelines for eligibility for public defense services. Within
policy parameters established by the commission, the director shall
establish and disseminate at least annually guidelines for determining
the eligibility of persons seeking public defense services.
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§ 12. Training. 1. The director shall provide training to or facili-
tate training of attorneys providing public defense services. Such
training shall be systematic, comprehensive and at least equal in scope
to that received by attorneys appearing as adversaries of defense
services providers. Training for attorneys shall include:
a. intensive entry-level training; and
b. regular in-service training and participation in regional and
national training programs to keep attorneys abreast of changes in law
and procedure, make attorneys aware of relevant developments in science,
technology and social science, and continue development of advocacy,
negotiation and communication skills.
2. The director shall provide training to or facilitate training of
non-legal public defense professionals in investigation, sentencing
advocacy, paralegal skills and other relevant areas.
3. The director shall provide training to or facilitate training of
appropriate support staff working with public defense providers, includ-
ing training in the use of automation technology, communication skills
and other relevant areas to increase efficiency and morale.
§ 13. Oversight. 1. Within policy guidelines established by the
commission, the director shall establish methods for gathering informa-
tion about the provision of defense services including, but not limited
to:
a. requiring localities and/or public defense services providers to
furnish information about how defense services are provided;
b. publicizing the commission's oversight function and inviting the
client community, concerned citizens, defense services providers, judg-
es, members of the criminal justice community and others to provide
information and express concerns about the provision of defense
services;
c. instituting formal procedures for soliciting the views of the
client community on specific issues affecting defense services and the
criminal justice system; and
d. establishing formal and informal relationships with governmental,
non-profit, community, judicial and other groups for the purpose of
gathering information and opinions about defense services.
2. Within policy guidelines established by the commission, the direc-
tor shall establish methods for improving the provision of public
defense services. The director shall:
a. produce reports on problems in the provision of public defense
services whenever the director deems that there is sufficient informa-
tion to warrant such reports;
b. bring to the attention of any individual attorney, other defense
services professional, institutional public defense provider or locality
complaints made known to the director about the provision of defense
services by that individual, institution or locality; and
c. Where a locality or public defense provider within a locality fails
to meet the standards established by the commission pursuant to section
eight of this act, make such failure known to the locality or public
defense services provider as soon as it is apparent to the director, and
work with the locality or public defense provider to bring the locality
or public defense provider into compliance.
§ 14. Annual report. The commission shall submit to the governor,
temporary president of the senate, speaker of the assembly and the chief
judge of the court of appeals an annual financial report on or before
the thirtieth day of September. Such report shall contain all pertinent
data for the prior twelve months on the operation of the commission
A. 3482 9
including cost of operation and financial assistance to localities. Such
report shall also include the proposed budget for the succeeding twelve
months including funds for financial assistance to localities.
§ 15. Exempt status. It is hereby found, determined and declared that
the creation of the commission and the carrying out of its corporate
purposes is in all respects for the benefit of the people of the state
and is a public purpose. The commission shall be performing an essential
governmental function in the exercise of the powers conferred upon it by
this act and the commission shall not be required to pay taxes or
assessments upon any of the property acquired by it or under its juris-
diction and control, or use of any moneys, revenues or other income
received by the commission. All contributions made to the commission
whether by gift, devise or bequest, shall qualify as deductions in
computing the net taxable income of the donor for the purpose of income
tax imposed by the state or any political subdivision thereof.
§ 16. Confidentiality of public defense records. 1. The commission
shall protect the confidences and secrets of public defense clients in
accordance with the disciplinary rules of the code of professional
responsibility set out in part 1200.19 of title 22 of the New York
codes, rules and regulations, including clients to whom the commission
provided, directly or indirectly, assistance or services. Notwithstand-
ing any other provision of law to the contrary, no record or report
shall be deemed deficient because of the omission of information, the
provision of which would result in the disclosure of any such confi-
dences or secrets, or would otherwise compromise the interest of any
public defense client.
2. Notwithstanding any other provision of law to the contrary, the
commission shall be exempt from the application of any provision of
articles 6 and 7 of the public officers law.
§ 17. Section 719 of the county law, as amended by chapter 682 of the
laws of 1975, is amended to read as follows:
§ 719. Expenses. If a public defender serves more than one county, the
expenses of salaries, maintenance and operation of [his] SUCH PUBLIC
DEFENDER'S office shall be shared by the participating counties in
accordance with the provisions of the agreement establishing the office.
Expenses incidental to individual cases shall be paid by the county for
which the services were rendered. All expenses chargeable to a county
[hereunder] PURSUANT TO THIS SECTION shall be a county charge to be paid
upon certification by the county treasurer out of an appropriation made
for such purposes, EXCEPT THAT CERTAIN EXPENSES MAY BE PAID WITH FINAN-
CIAL ASSISTANCE FROM THE STATE AS AUTHORIZED BY SECTION NINE OF THE NEW
YORK STATE PUBLIC DEFENSE COMMISSION ACT.
§ 18. Section 720 of the county law, as amended by chapter 761 of the
laws of 1966, is amended to read as follows:
§ 720. Annual report. The public defender shall make an annual report
to the board or boards of supervisors AND TO THE NEW YORK STATE PUBLIC
DEFENSE COMMISSION covering all cases handled by [his] SUCH PUBLIC
DEFENDER'S office during the preceding year.
§ 19. Section 722-c of the county law, as amended by section 3 of part
J of chapter 62 of the laws of 2003, is amended to read as follows:
§ 722-c. Services other than counsel. Upon a finding in an ex parte
proceeding that investigative, expert or other services are necessary
and that the defendant or other person described in section two hundred
forty-nine or section two hundred sixty-two of the family court act,
article six-C of the correction law or section four hundred seven of the
surrogate's court procedure act, is financially unable to obtain them,
A. 3482 10
the court shall authorize counsel, whether or not assigned in accordance
with a plan, to obtain the services on behalf of the defendant or such
other person. The court upon a finding that timely procurement of neces-
sary services could not await prior authorization may authorize the
services nunc pro tunc. The court shall determine reasonable compen-
sation for the services and direct payment to the person who rendered
them or to the person entitled to reimbursement. [Only in extraordinary
circumstances may the court provide for compensation in excess of one
thousand dollars per investigative, expert or other service provider.]
Each claim for compensation shall be supported by a sworn statement
specifying the time expended, services rendered, expenses incurred and
reimbursement or compensation applied for or received in the same case
from any other source.
§ 20. Section 722-e of the county law, as amended by section 11 of
part VVV of chapter 59 of the laws of 2017, is amended to read as
follows:
§ 722-e. Expenses. All expenses for providing counsel and services
other than counsel [hereunder] PURSUANT TO THIS ARTICLE shall be a coun-
ty 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, EXCEPT THAT
CERTAIN EXPENSES MAY BE PAID FOR WITH FINANCIAL ASSISTANCE FROM THE
STATE AS AUTHORIZED BY SECTION NINE OF THE NEW YORK STATE PUBLIC DEFENSE
COMMISSION ACT. Provided, however, that any such additional expenses
incurred for the provision of counsel and services as a result of the
implementation of a plan established pursuant to subdivision four of
section eight hundred thirty-two of the executive law, including any
interim steps taken to implement such plan, shall be reimbursed by the
state to the county or city providing such services. Such plans shall
be submitted by the office of indigent legal services to the director of
the division of budget for review and approval. However, the director's
approval shall be limited solely to the plan's projected fiscal impact
of the required appropriation for the implementation of such plan, and
his or her approval shall not be unreasonably withheld. The state shall
appropriate funds sufficient to provide for the reimbursement required
by this section.
§ 21. Subdivision 1 of section 722-f of the county law, as amended by
section 3 of part MM of chapter 55 of the laws of 2018, is amended to
read as follows:
1. A public defender appointed pursuant to article eighteen-A of this
chapter, a private legal aid bureau or society designated by a county or
city pursuant to subdivision two of section seven hundred twenty-two of
this article, an administrator of a plan of a bar association appointed
pursuant to subdivision three of section seven hundred twenty-two of
this article and an office of conflict defender established pursuant to
such subdivision shall file an annual report with the chief administra-
tor of the courts [and], the office of indigent legal services AND THE
NEW YORK STATE PUBLIC DEFENSE COMMISSION. Such report shall be filed at
such times and in such detail and form as the office of indigent legal
services AND THE NEW YORK STATE PUBLIC DEFENSE COMMISSION may direct.
§ 22. No existing right or remedy of any character shall be lost or
impaired by reason of the provisions of this act. Any public employee
transferred as a result of the provisions of this act shall be trans-
ferred without further examination or qualification and shall retain his
or her respective civil service classification and status.
§ 23. Severability. If any clause, sentence, paragraph, subdivision or
section of this act shall be adjudged by any court of competent juris-
A. 3482 11
diction to be invalid, such judgment shall not affect, impair or invali-
date the remainder thereof, but shall be confined in its operation to
the clause, sentence, paragraph, subdivision or section thereof directly
involved in the controversy in which such judgment shall have been
rendered. It is hereby declared to be the intent of the legislature that
this act would have been enacted even if such invalid provisions had not
been included.
§ 24. This act shall take effect immediately; provided however that
the appointment of members to the New York state public defense commis-
sion shall be completed within 90 days of such effective date, and the
public defense services standards, required by section eight of this
act, shall be promulgated within 180 days of the appointment of all
members of the New York state public defense commission.