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The Court respectfully refers the matter to the Appellate Term

In a criminal case that was returned to the calendar of the court, on the VTL §319-1 no proof of insurance charge. That charge was dismissed upon production of proof of insurance by the defendant. This Court previously dismissed a VTL §509-1 charge concerning this defendant. The Judge have severed the two cases in order to allow the People to appeal from a final order on the §509-1 case. The People have announced their intention to perfect an appeal from that earlier determination. Defense counsel has indicated that he has not been retained concerning an appeal. He has requested the assignment of counsel for the appeal. He has indicated that he is not on the Assigned Counsel Defender Plan Panel.

As a Notice of Appeal was filed in this case with the Appellate Term for the Supreme Court of Nassau County, the Court is without jurisdiction to assign counsel in this case. The relief sought after must therefore be denied. However, this Court believes there are serious issues which also need to be considered by the Appellate Term, the State of New York, the County of Nassau, and our Bar Association via the Assigned Counsel Defender Plan and the New York State and Nassau County Magistrates Associations.

The issues involving assigned appellate counsel are simple, but most are beyond the capacity of this Court to address, as they involve an appellate issue. Some of those issues involve the adequate funding of Legal Aid, Public Defender and Assigned Counsel programs throughout the State so that counsel for indigents may indeed be effective and advocate with the same resources as their adversaries, the prosecutors throughout the State. This is both a Sixth Amendment argument as it concerns the effective assistance of counsel and an equal protection of the laws argument to provide parity with State prosecutors. There is also the issue of the central administration of assigned counsel programs throughout the State so that the administrations of legal services to the poor do not vary from county to county. There is also the issue of assigning counsel. Currently the laws in New York State do not allow for the assignment of counsel by Village Courts in traffic infraction or local law cases where jail sentences may reach fifteen days per violation. While all of these issues present constitutional questions, it is the last one that this Court is confronting. Village Courts in Nassau County have no jurisdiction over felonies and misdemeanors. Yet the issues before the Court are whether this defendant is eligible for the assignment of counsel and whether the Court has the legal right to assign counsel to this defendant concerning the appeal or otherwise.

The United States Constitution Amendment VI reads in pertinent part:

“In all criminal prosecutions, the accused shall enjoy the right to…have the assistance of counsel for his defense.”

The Sixth Amendment provides for the assistance of counsel in all criminal prosecutions. The Supreme Court of the United States first recognized the right to appointed counsel. In one case, the authorities ushered the defendants to trial in the midst of a community firestorm, where eight defendants were convicted and sentenced to death. On appeal, the Supreme Court held the defendant’s lack of access to counsel had violated their right to a fair hearing under the Fourteenth Amendment.

In another case, the Supreme Court expressly rejected any limitations on the right to counsel in state prosecutions. The defendant in the case had broken into a pool hall. Declaring his indigence, the Trial Court refused to assign counsel, stating that the State of Florida only appointed counsel in capital offense cases. Defendant then mounted his defense and was convicted. He prepared his own Petition for Certiorari to the Supreme Court of the United States. The Supreme Court held that the state has an obligation to provide counsel for indigent defendants in all state criminal prosecutions, without limitation.

The Supreme Court later expanded the right to assistance of counsel to include the assistance of counsel during a first appeal as of right. The Court later clarified that this grant included that the assistance of counsel be effective. In addition to these federal rights to the assistance of counsel, New York State harbors its own separate guarantees.

Prior to the Supreme Court of the United States, indigent defendants had to either represent themselves pro se or rely upon the benevolence of attorneys volunteering to represent them pro bono publico. This dysfunctional system deprived countless poor people of their right under the Sixth Amendment to effective legal representation. This case presents an additional permutation to this very vexing problem, in that this defendant is not a citizen and may be an undocumented immigrant or alien.

The New York Court of Appeals later set a striking precedent for state courts: indigent defendants in all cases, not merely felony, have the right to appointed counsel. Much like the Supreme Court of the United States did, the New York Court of Appeals granted a right to assignment of counsel to such appeal as a statutory right. This right also includes the right for that assistance of counsel to be effective. The Court of Appeals held that the right to assistance of counsel means more than just having a person with a law degree nominally representing a defendant – the representation must be effective.

This Court has previously held that Village Courts have a constitutional obligation to assign counsel to indigent defendants where there is a mere possibility of jail. New York County Law Article 18-B §722 provides: “In criminal proceedings, representation by counsel furnished by a private legal aid bureau or society designated by the county or city, organized and operating to give legal assistance and representation to persons charged with a crime within the city or county who are financially unable to obtain counsel.”

As noted earlier, this Court does not have jurisdiction over felonies and misdemeanors, only violations. Although the §722-a catch-all provision would normally apply, both VTL §509 and §319 are traffic infractions, which are excepted under that catch-all provision. Regardless, pursuant to VTL §§ 509 and 319, the charges carry with them a possible sentence of jail time. These violations do not qualify for the appointment of counsel under Article 18-B because they are not felonies or misdemeanors, yet carry with them some of the same penalties as a felony or misdemeanor; to wit: jail time.

The defendant here must defend against the §509 charge before the Appellate Term, or have this Court’s dismissal overturned without opposition. Pursuant to County Law Article 18-B, §722, authority lies with the appropriate Appellate Term to assign counsel.

The Court writes this decision and all others to highlight its concern about these subjects, calling to arms those in our society who chose to undertake constructive measures to do something about them. As long as this jurist is a Village Justice, he will follow his oath of upholding our United States and New York Constitutions. And, he will also do his best to inspire all others to do likewise. If silence is acceptance, then this Court will never remain silent when it is faced with correctable, remediable inequities in our system of laws and jurisprudence.

The Court has addressed possible Tenth Amendment violations in its December 20, 2007 decision. The federal government is now mandating requirements for licensing drivers which, in this Court’s view, unfairly discriminate against aliens. Because indigent defendants must be provided with counsel, and the funding must come from some source, the federal government might also consider shouldering the burden of providing these undocumented aliens with counsel. The federal government could reimburse the states for providing counsel. One such program already exists: the Department of Justice operates the State Criminal Alien Assistance Program, which reimburses state governments for the costs of detaining undocumented alien inmates.

The County Law Article 18-B, §722-b(3) also provides “In extraordinary circumstances a trial or appellate court may provide for compensation in excess of the foregoing limits and for payment of compensation and reimbursement for expenses before the completion of the representation.” The defendant through his counsel has asked for the assignment of counsel for purposes of defending against an appeal. The Defendant is apparently indigent in that he cannot afford the services of an attorney for that appeal. While this Court is without the legal authority to assign counsel on appeal, it is apparent that if 18-B is unconstitutional because it does not allow for the assignment of counsel by Town and Village Justices in violation cases. Thus, the statute needs to be amended to provide for the assignment of counsel in these courts and cases.

The Court respectfully refers the matter to the Appellate Term and the Assigned Counsel Defender Plan for a consideration of these issues. If they do not act then the defendant will be unable to defend against the appeal and may thereafter be once again subject to the possibility of a jail sentence. The Village may in fact win their appeal from this Court’s decision by default because the defendant cannot afford to defend against the appeal. If that is so, then the State and this County will allow a gross inequity to occur which will have a ripple effect throughout the State and nation.

No one charged with a violation and who is in forma pauperis and where there is a possibility of jail should be denied the assignment of effective counsel.

A right to a counsel should not be denied to an accused in a criminal case. Here in Stephen Bilkis and associates, we have our competent Nassau County Criminal lawyers who will defend and protect your rights in every stage of the case. Contact us now and know your rights.

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