Determining Eligibility for Appointed Counsel in New York State

274 Pages·2008·7.16 MB·English

NEW YORK STATE DEFENDERS ASSOCIATION, INC.
New York State Defenders Association, Inc.
Public Defense BackuD Center Telephone [phone]
FAX [phone]
August 5, 1994
TO:
The Honorable Mario M. Cuomo The Honorable Helene E. Weinstein
The Honorable Ralph J. Marino Members, N.Y.S. Senate
The Honorable Sheldon Silver Members, N.Y.S. Assembly
The Honorahle Manfred Ohrenstein The Honorahle Judith S. Kaye
The Honorable Clarence D. Rappleyea The Honorable G. Oliver Koppell
ne Honorable James J. Lack The Honorable H. Carl McCall
This report is submitted pursuant to NYSDA's contract with the State of New York to
review, assess and analyze the state's public defense system and to make recommen­
dations for improvements to the Governor, the Legislature, the Judiciary and other
appropriate instrumentalities.
The report represents the first comprehensive examination of the processes used to
determine financial eligibility for appointed counsel in New York's 62 counties.
Unfortunately, the study reveals a pattern of constitutionally defective eligibility practices
across the state which seriously undermines the fundamental state and federal right to
appointed representation.
Almost 30 years have passed since the Legislature established New York's public defense
system. Constitu tionally defective eligibility practices are one aspect of many long­
standing deficiences in public defense representation in this state. As you review this
report and consider its recommendations, please recognize that the hour is late and that
reform of this state's public defense system is long overdue.
~ ~

onathan E. Gradess

ecutive Director
TABLE OF CONTENTS

I. INTRODUCTION.

II "IETHODOLOGY .. •.••.•• ' •••.••• ' ry

III. THE CONSTlTUTIONALAND STAn.rrORY RIGHT TO

APPOINTED COUNSEL. . .. .... . .................. . 3

IV. IMPROPER DELEGATION OF ELIGIBILITY DECISION·

MAKING TOTHIRD PARTIES. .. ..... .. ........ 5

V LACK OF UNIFORM PRACTICES AND STANDARDS 6

VI. THE ELIGIBILITY DETERMINATION: THE APPROPRIATE

INQUIRY.. 7

VIr. THE STANDARD: "UNABLE TO AFFORD COUNSEL,"

NOT"INDIGENCY-' . .... .... ... ...... . .......... .... . .. 7

VlII. DIVERGENT AND INCONSISTENT INCOME

GUIDELINES . 8

a. Diverse Origins of lncom~ Guidelines........... . 8

b. Variance Among Income Guidelines _".......... ... 10

IX CONSIDERATION OF INAPPROPRIATE FAClDRS . 10

to

a. Non-Liquid Assets _...................
b. AbililY to Post Bail.. . .. . II

c. Parental Assets of Minor Defendants............ 1t

d. Defend3.ms Charged Solely with VioLations _............ 13

X. FAILURE TO CONSIDER APPROPRIATE FACTORS........ . .. 13

XI. INAPPROPRIATE RELIANCE ON A SINGLE FACTOR

SUCH AS INCOME 14

XII. VERIFICATION OF FINANCIAL STATUS MAY

UNDERMINE TIMELY APPOINTMENT OF COUNSEL ... 14

XlII. ILLEGAL COST RECOVERY 15

XIV CONFIDENTIALITY OF FINANCIAL INFORMATION IS

NOT ADEQUATELY SAFEGUARDED.................... 17

xv
WIDE AND UNEXPLAINED VARIATIONS IN RATES OF

ADVERSE ELIGIBILITY DETERMINATIONS . 18

XVI. LACK OF REVIEW PROCESS FOR ADVERSE ELIGIBILITY

DETERMINATIONS.. . . .. .. .. . .. 19

XVII. CONCLUSION AND RECOMMENDATIONS......... . ... 20
APPENDIX:
COUNTY ELIGIBILITY CHARTS
EligibllllY Determination
Use of [ncome Guidelines in the Eligibility
Determination . 7

Income Guidelines Sole Determinam of Eligibility

Determinauon .. . .. . . .. 15

Information Requested on Eligibility Form/Other

Fnctors Considered _ . IS

Trenlment of Bail in the Eltgibdity Determination. . . . . . .. 30

Age of Mi nor/Income of P:lrents Considered in the

Eligibility DeterminationlWhether Minors Provided
Representation When Parents Can Pay But Refusel
Parental COSI Recovery Process ... , . . . . . . . . . . 34

Partial Payment/Contribution (722-d): Process fo~
Recovery 43

Recoupment/Repaymem: Process for Recovery. . . . . . . . .. 49

Statement of Confldenriali[y on Eligibility Form.. . . . . . .. 53

Potenrial Cliem Required (Q Sign an Affidavit

Regarding the Truthfulness of (he Informa[ion on the

Eligibility Form. .. . .. ... . . ... . .... .. . .. . . .. .. . .. 56

Average Percent of Defendams Delermined Ineligible

Annually 59

Review Process for Those Determined Ineligible 62

NEW YORK STATE ELIGIBILITY PRACTICES:

COUNTY PROFILES ___ 66

NEW YORK STATE DEFENDERS ASSOCIATION

CHIEF DEFENDER SURVEY: ELIGIBILITY FOR

THE APPOINTMENT OF COUNSEL . .. _.. 242

iv
I. INTRODUCTION
The responsibility of the judiciary to appoint counsel to all criminal defen­
dants who are fmancially unable [0 hire a lawyer, is a principle of fundamental
constitutionetl imparL ' The [[ght [Q appoimed representation is not, however,
self-executing. Derermin':Hion of financial eligibility for public defense repre­
senrmion is a necessary prerequisite to appointment by the coun. While New York
State hilS 01 long-standing tradition of scrupulously safeguardi ng the counsel rights
of all those charged with crimes, the couns have been less than anentive 10 their
role in ensuring the implementation of {hose rights. The constitutional guarantee
of counsel depends upon the prompt and accurate determination of eligibility for
appointed represent::lliono
The integrity 0 f the eli gibili ty decision-maki ng process is critically important
to both the indi vidual facing criminal charges and to the criminal justice system as The integrity of the
a whole. Proper and reliable determinarions of eligibility for assigned counsel
eligibility decision­
ensure that lhe relatively scant public resources currently devoted to public defense
services are expended appropriately.~ making process is
During [he 15 years that the New York State Defenders Association (NYSDA)
critically important to
has studied the public defense system in New York State,) it has leamed [hat the
both the individual
procedures nnd qand::lrds employed for appointment of counsel: I) vary widely
from county to county; 2) are inconsistently applied even within the same jurisdic­ facing criminal charges
[ion; 3) often entail [he illegal delegation of eligibility decision~making; 4) fre­
and to the criminal
quently employ standards so stringent they illegally disqualify eligible defendants
from appoimed representation; 5) fail to properly consider factors crilical to an justice system as a whole.
appropriate eligibility delermination, and; 6) rrequently consider, or rely exclu­
sively on factors wholly irrelevant 10 an accurate assessment ofeligibHilY_~
Ipeople V W,'lel'uki. 15 N.Y.2d 392 (J 965); Gideon v. Waillwrighl. 372 U.S. 335. 344 ([963).
o
1 Govtmmem officials and tht mtdi~ gtntrally focus on tht perceivtd probltm of ineligible
crimina! defendants receiving "free" counseL Concern over the possiblt abuse of the pUblic fiSC
recently prompted an eligibilicy experiment in Queens County. The purpose of the elpuimem is to
determine whether cne implemenc.ation of eligibilily guidelines will afrect the number of defendants
in Queens County receiving court· appointed counsel. NYSDA's researth an<1 work in Ihe area of
eligibility support tne opposite conc1usion-currenl eligibility praetices have the erfm of excluding
legitimately eligible individuals. ralner than accompli~hing tne de~ired goal of screening out defen­
d"nlS able to retain pri"ate counsel.
.' Under its contract with the State of l\jew York, NYSDA is obligated to "review, assess and
analyze the public defense syslem. identify problem areas and propose solutions in tne form of
~pecjflc recommendatio ns to the Governor. the Legislature and the Judiciary and other appropriate
irlSlrumemalities ,"
J In its /989 Anllj,al Repon, the New York St:llC CommiHion on Judolcial CondUCt echoed
this concern;
The Commission has become aware of varying and oilen confusing practices around
the SI.~ue as to whose responsibility II is to determine the financial eligibilily of a
panicular defendant for assigned counseL There are :llso varyir!g milldanls as Ul the
eligibi lity requirements themselvcs. Be.c~use the guidelines are vague. the result~ may
be arbitrary. Differem officials of the S.lme county often cice differcm ~tandards.
New York State Commission on Judicial Conduct. AnmUJI Report, 51 (1989).
In 1991. the problems am)(:ialed with eligibiliry and assignment practices pcl".iisLed. 3tId were still the
focus of concern for the Commission on Judicial Conducl, which again commented on chern in its 1992
Amllltli Reporl [New Yor~ Stale Corrunillion Or! Judicial Conducl. ATI11unl Repon, 16 (1992)1.
Delermln·lng Eligibility lor Appointed Counsel in New York Stale Page 1
In (heir zeal to contain the increasing COSIS of public defense services, many
jurisdictions also anempt to illegally recover the cost of represen(Z;tion from
defendants legitimately unable to afford counsel. Moreover, the complete lack of
meaningful accountability for eligibility decision-making makes it difficult to
collect the data necessary to assess the full elUent to which counties fail provide
[Q
constitutionally required appointed counsel in criminal cases.
The following examination of che eligibility practices employed in counties
throughout New York State is based on empirical data collected by NYSDA
through a comprehensive, statewide survey, as well as information obtained while
assisting public defense providers and county officials with eligibility-related
issues.5 NYSDA's in-depth research and analysis of the disparate and frequently
irrational eligibility standards and practices employed across the stat~ highlight the
critical need for meaningful refonn of our public defense system. The empirical
survey data confinn what our experience has long revealed-the inequitable,
disparate and arbitrary methods used for determining eligibility for public repre­
sentation in counties throughout the state critically undermine the right to counsel
of all criminal defendants. The defective eligibility practices currently employed in
New York: fail to ensure that eligible defendants receive constitutionally mandated
l~gal representation.
The goal of this report is to identify the grave deficiencies that characterize
eligibility decision-making in New York State, and to outline a course of action that
will both end these illegal practices and guarantee appointed representation to all
individuals charged with crimes who are fmancially unable to retain counsel.
II. METHODOLOGY
In July 1993, a survey regarding issues related to eligibility for the appoint­
m~nt of counsel was sent to public defense providers in New York State (n=8 I),
representing all 62 counties in the state. A copy of the survey can be found at
Appendix at 242-246. In jurisdictions with more than one fonnal pub'iic defense
provider, a survey was sent to each public defense office (public defender, legal aid
society director or assigned counsel administraLOr) in the county. Approximately
one month later, a follow-up survey was sent to those offIces who had yet to
respond. Those offices which failed to respond to the follow-up survey received
lelephone calls r~questing the survey information. Ultimately, 73 percent (n=59) of
the public defense providers responded either by mail or through a telephonic
interview with NYSDA research staff. These respondents represent 89 percent
(n=55) of the counties in New York Slale.
COUnty Eligibility Profiles (Appendix at 66--241) were developed from the
survey data and from any other information (e.g., wriuen eligibility standards,
1 Eumples of some of the work NYSDA h~s previously undertaken on this issue include:
NYSDA. E1iSibi/iry for Public DefetUe RepreJenrallan: Tire HiS/l. Ri,ks of Being L·nable 10 Afford
Cmlfl.rel in .';'ew York Slate, (March 1986); H~\t and Gradess, "Determining Clien! Eli~ibi\ity for
Appoinled Counsel: A SU<llegy for Reform in New York Slate," NY. U. Rell. L and Soc. Cflange, Va\.
XIV, No. I (\986); and NYSDA, Prlblic Defense Services in Schenectady Counry: An AJHnmel'1t af
t!t~ Aniglled Caunsel Program (March 1984).
eligibility forms, income guidelines) submitted in response to the survey. Each of
the programs that responded to the sUJ'\'ey was sent a copy of its Profile: for
verif,cation,6 Eligibility Profiles were similarly completed for those COunties [hat
did not respond to tile survey by using: data previously collected by ~YSDA through
Informal telephone surveys and a review of wriuen documents penaining 10 eligi­
bility. Each of the programs that did not respond to Ihe survey received their
county's Profile developed from eligibility data on file at NYSDA's Public De;ense
Backup Center, together with another copy of the eligibility survey. Offices were
asked to either complete the surveyor verify the infonna1ion contained in the
ProfIle. Public defense providers were advised that if NYSDA did not receive a
completed surveyor modifications to lhe Profile, it would assume that the infonna­
lion in the Profile W:lS current und accurate.
Thus, NYSDA's current dam on eligibility represent 100 percent of the
... many people accused
counties in New York State, thereby providing a comprehensive pictun: of the
public defense eligibiliLy practices, procedures and problems in the state. The data ofcrimes who are not
in the Profiles were used to compile the COUnty eligibility chans which are located
"indigent," are
at Appendix at l-65.
nonetheless without
sufficient means to retain
III. THE CONSTITUTIONAL AND STATUTORY RIGHT TO private counsel.
APPOINTED COUNSEL
The right to counsel guaranteed to every American citizen accused of a crime
is embodied in the Sixth Amendment to the United States Constitution. and made
applicable to the states through the Fourteenth Amendment. An integral compo­
nent of the right to counsel is the right to coun-appo'lnted counsel for those unable
to hire an attorney. Cideon v. Wainwrighr, 372 U.S. 335 (963); Argersinger v.
Hamlin. 407 US. 25 (972); SCOlf Y. Illinois, 440 U.S. 367 (1979). The right to
appointed counsel is also guaranteed under the New York State Constitution. N.Y.
Canst. art. I § 6.
New York's parallel statutory authority implementing the constitutional right
to appointed counsel likewise emphasizes that it is financial inability 10 retain
counsel and not "indigency" which governs the determinalion of eligibility for
court-appointed representation. N.Y. County Law § 722 (McKinney 1991) ("finan­
cially unable to obtain counsel"); NY Crim. Proc. Law §§ 170.10(3). (4),
180.1 O~ 3)(c), 210.15(2)(c) (McKinney 1993). This distinction is a critical one, since
many people accused of crimes who are not "indigent," are nonetheless without
sufficient means to retain private counsd.7
(, One ofl1ce. {he Albany COUrllY Public Ddcnder, specifically declined to verify 1b:: informalion
in its Profile, indic~ling thal it was in the process or revising its eligibilily guideline.s.llius, ~ reported
eligibility data for thaI office may no longer be current as a resul! of the implemenuWon of new
guidelinc,.
1 Article I g-B of New York's County Law "nd 18 U.S.c. § 3006A (1989). ils federal counterpan:,
as well ~s lhc legislati~'e history of both statllle~. ~peciry thallhe proper standard to be employed in
delermi uing eligibilily for appoinled counsel is fin:mcial inability to afford counsel. oci -indigency."
N.1. County Law Art. 18·8. Leuer in Support. The JUdicial Conference of the SI:W: of New York,
G(}vcrnor"s E3 ill JJekel L 1965. c. 878; Memorandum of the Atlorney General. reprinto::l in N~ York.
Determining Eligibility for Appointed Counsel in New Yor\{ Stale Page 3
Thus, an appropriate eligibility inquiry requires an assessment of the individ.
ual's ft.lancial ability to obtain counsel. N.Y. County Law § 722 (McKinney 1991).
This eligibility determination, which so directly affects access to legal repre­
sentation, and is therefore of critlcal constitutional import, is, under current law. a
responsibilily expressly reserved to th~ judiciary. See N.Y. COUnty L:::Iw § 722
(McKinney \991); Marler of Sueam v. Beisheim, 34 A.D.2d 329, 333 (2d Dept.
1970); People v. Whear, 80 Misc. 2d 844 (Suffolk County Ct. 1975). The appoint·
ment of counsel is m:::lde "in the exercise of the trial court's inherent power and in
the discharge of its constitutional and statutory duty to furnish counsel to every
indigent defendanl charg~d with a crime ..." l'vlauer of Scream v. Beisheim, 34
A.D.2d at 333 (2d Dept. 1970).
While the ministerial function of fmanclal data colleCtion may at tim~s b~
delegated to an outside emilY, the ultimale obligalion to make eligibility detennina­
lions reSts with the coun. Powell v. Alabanw, 187 U.S. 45, 72-73 (1932); Marter of
Stream v. Beisheim, 34 A.D.2d at 333 (2d Dept. 1970); NY Crim. Proc. Law
§§ 170.10 (3)(e), (4)(e); 180.10 (3)(e), (4); 210. 15 (2)(e), (3).
The necessity for prompt and accurate judicial determinations of eligibility for
appointed counsel cannol be over-emphasized. It is beyond dispute that the Sixth
and Fourteenth am~ndment right to counsel generally, and to court-alJpoi.med
counsel for those unable to retain privati:' counsel, attaches at arraignment. Powell
v. Alabanul, 287 U.S. at 57 (1932); Kirby v. Illinois, 406 U.S. 682, 688-89 (1972).
This means thal the defendant has the right to counsel, assigned or retained, during
the alTIl.ignment as well as at all subsequent proceedings. People v. Wilenski. 15
N.Y.2d 392, 396 (1965); People v. il,.larincic, 2 N.Y.2d 181, 183-84 (1957); See also
N.Y. Ccim. Pmc. Law §§ 170.10 (3); 180.10 (3); 210.15 (2).
Effective representation of the accused, which includes the constitutional
right to present a defense, compels the appointment of counsel at th,; earliest
possible stage of the proceedings. Ind~ed. all professional standards for the provi­
sion of defense services recommend thal counsel be provided as soon as feasible
after custody begins, and in fact contemplate intervention of counsel even before
the defendant's first appearance before a judicial officer or the filing of formal
charges. ABA Standards for Criminal Justice, Providing Defense Services, 5-6.1
(1990); National Advisory Commission (hereinafter N AC] on Criminal Jusrice
Srandards and Goals, Courts 13.\ and Commentary (1973); National Study Com­
minion [hereinafter NSC] on Defense Sen/ices, l.2-1.4 (1976); National Legal Aid
Stale Le8isl.(lli~e Anl\~l. 1965, p. 3'2.; Communication of President John F. Kennedy to House Speaker
John W. McCormack. reprinted in 1964 U.S.C.C.A.N. 2993.
Consequemly. the frequent use by the COUlU of the term "indigency" signi fies either the erroneous
application of an illegally stringent ~landard. or use of the term "indigency" to mean "legal" indigency,
that is. inability 10 afford counsel. IS opposed \0 pecuniary indigency or complete deslirntion. (See
e.g., Gideon v. W£linwrighl, 372 U.S. 335. 3.\0. 344 (\963) (inlercharlgea.ble use of"indigenl:' "unable
to employ counsel" ami "100 poor 10 hire a lawyer"): Powell v. A.labama, 287 U.S. 45. 71,72 (1932)
("indigent" and "unable to employ counsel" used interchangeably); ,\-laner ofSrream v. BeiJheim, 34
A.D.ld 329, 33\, 333 (2d Dept. 1970) ("indigent" and "financially unable to retain counsel" used
synorlymously); (Peaple v. Berko....·;I:, 97 Misc.2d 277, 279-80 (Sup. Cl. Kings County 1978J;
("jrldigency" and "financial inability to pay" used inlerchangeably),
and Defender Associalion [hereinafter NLADAl Srandards for Deferukr Suvices.
n 2b, n 2e ([ 976); NUDA Srandardsfor the Administration of Assigned Counsel
Syslems, 2.5 (1989).
From a praceic;}! standpoint, the constitulional right to early intervention of
counsel would be me,1ningle~s if the coun. was nat required, upon the defendant's
tirst appearance before it, to inform the defendam of his right to assignment of
counsel anu to take affmnati ve ste~s 10 effectuate that right.~ Moreover, the court'S
continuing ob!ig::][lon ta safeguard these rights is recognized as an integral compa­
nent of the right [Q counsel. People v. WiIenski, 15 N.Y.2d 392 (1965); People ,,_
Pflwenski, 29 A.D.2d 629 (4th Dept. 1967).
IV. IMPROPER DELEGATION DF ELIGIBILITY DECISION·
MAKING TO THIRD PARTIES
The constitutional and statutory obligation of the judiciary to insure the proper
de,ermination of eligibility for appointed caunsellS thus beyond dispute. However.
in a vast majority of jurisdictions throughout the state, the judiciary does not fulfill
this mandate, and instead delegares the initial eligibility determination. in its
entirety, to public defense providers. In 40 percent Df the counties.. the publie
defender, legal aid sDciety, or assigned cDunsel prDgram is solely responsible for
determining eligibility (Appendix: at 1-65). However, in SDme of these couruil:s. tbe
lask Df making eligibility assessments is delegated further to nDn-legai staff such
as secretaries (e.g., Coillmhia and Genesee-Appendix i'lt 1-2), investigators (e.g.•
Broome and Chautauqua-Appendix at t), and typists (e.g., CDrtland-Appendix
at I).
The judiciary is exc lUSt vely responsible for determining eligibility in only 34
percen, of the counties. In anDt~.er 21 percent of cDunties, the judiciill}' and the

public defense provider share eligibilily decision-making (Appendix. at 1-65).

I!l three counties (five percent), the eligibility inquiry is delegared to an

outside agency, which, tn [heory. collects financial data and makes recommenda­

tions tD the court (Appendix at 3, 5). In Nassau CDunty, the DefelGe Counsel

Screening Bureau (DCSB), an agency created by the Counly Ex.ecuti-re.and housed

in the offtce of the CDmmissioner of Acceums. cendue!s all eligibility screc:ningand

1 The New York Legislarure. wisely recognizing the crilical role of the judiciiif)' in gtJ3l'aJueeing

the right to early entry of J!signed counsel. has p~ovided a Slarutory mechanism to iDs;o~ thaI the

defendant's right to assigned counsel is scrupulOusly enforced. N.Y. Crim. Proc. t.- i 170.10(3)

provides. in relevant pan, Ihat:

The de;endanl has the right to the aid of counsel at the arl'aignmenllllld aI every

subsequent stage or the action. H he appears upon ~uch illTaignrncnL wl1hoal eounsel.

he has Ihe following rig-hIS:

(el fila have cOIUlsei assigned by the COJ,lrl if he is financially lUIabU-U,obIlJin (he

some. . N Y trim. Pmc. Law § 170.100){c) (McKinney 199]) (emphasiuDpplied).

Subdivision 4 (a) on 170. \0 further mandale~ that lhe coun inform the deCUIdam:
Of his rights as prescribed in subdivision three: and the coun must not onl,. a::cord him

oppooJniry l{) exerci~c such rights but must it~elf lake such aCfirmalivez:tiorl as is

necessary to er[ectuale lhem. N.Y. Crim. Proc. Law § 170.10(4)(a) (McKiamc:y 1993).

The pbin meaning of the stature diclale5 thaI the eoun·s obligalion to inform Ih:dckDdanl ofhi$

right (0 assigned counsel and to do whalever is necessary 10 effecluate that nghl, arUes when lhe

defendant ftrst appears to be arraigned. and conlinues untilrna( Judicial resporuibility is Culnlled.

Dete~mining E;igibilily for Appointed Counsel in New York Stale Page ::
recommends to the court whether to appoint ordeny counsel. In Queens County, the
New York City Criminal Justice Agency (CIA), a nonprofit cily agency. conducts
eligibility screening in conjunction with the pre-trial release screening program.9
Finally. in Suffolk County. the "ROR Unil" of the probation department is respon­
sible foreligibililY decision-making. lo
The practicai danger inherent in all these delegation arrangements is that the
courts will "rubber stamp" the decision made by the screening agency withoul
making any independent assessment of the applicant's eligibility for appointed
counsel. Indeed. the court's exclusive reliance on the recommendation of the
screening bureau is >'lrtU;llly assured in Nassau County. where some judges rou­
tinely receive from DCSB only its single page "recommendation," without any of
the underlying financial information on which its decision is based. It
In many jurisdictions. often the only involvement by the judiciary in the
eligibility delermination process is to review the decision of the public defense
provider if the defendant challenges an unfavorable eligibility determination (Ap­
pendiX at 62--65). But even this role is often performed by a party other than the
coun.ln at least eight counties where the public defense provider makes the initial
eligibility decision, the review of that decision is conducted by the same office11
(Appendix at 62--65). Therefore, in m;lny counties, the couns cannot adequately
perform their constiLutionally mandated obligation to safeguard the counsel rights
of criminal defendants, since their involvement in the eligibility determination
process is minimal and quite often nonexistent.
v.
LACK OF UNIFORM PRACTICES AND STANDARDS
Further confusing the eligibility determination process is the lack of uniform
procedures and standards for insuring proper and consiscent decision-making. J USl
as the entity who makes [he eligibility decision varies from coumy to county, so coo
do the procedures followed for reaching the decision (Appendix at 1--6), In some
counties, the coun requires each applicant to fill out a form. In others, no written
forms are used, and the eligibility decision is based solely on an in-coun, verbal
inqUiry by the judge. In yet other counties, the court refers defendants to the
public defense provider who either requires the completion of a written form,
conducts eligibility interviews by phone, or delegates the task in its entirety to
9 As pal1 of an c:.,pc:rirllental program ini!ialtd in April 1993, the CJA began screening Queens
County ddendants to determine eligibility for appointed counsel. Following a practice similar to the
pre-trial release program, CJA pro>'ides lhe COul1 with both the financial information obtained from
each defendanl-applicant, and CJA's recommendation regarding entitlement to appointment of coun­
sel. The COUrt'S decision is ba~ed on this information.
toThe Sufrolk Coumy ~gal Aid Society indicates tha! in a few cases il screens defendan~ direl:lly.
11 [1'1 Peorl~ v. fdward McKierrwn. No. 92-6072N (Sup Ct. App. Term,Apri128, 1993), a Nassau
County case no..... pending before thc Ne..... York Courtof Appeals, the lrial court improperly relied on
the Defense Counsel Screening Bureau's bare recommendalion to deny Mr. McKiernan appointed
counse!. .....ithout making any independent jUdicial inquiry concerning his financial starus.
11 For example, in Putnam Coumy, a defendant has 10 days 10 appeal an adverse eligibility
determination. The review is conducted by members of the ~gaL Aid Sociely"s Board of Direclors
(Appendix aI 25).
Page 6 New Yo!il; Slate Defenders Association, Inc.