People ex rel. Whedon v. Board of Supervisors

192 A.D. 705, 183 N.Y.S. 438, 1920 N.Y. App. Div. LEXIS 7539

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 1920
• Status: Published

Opinion

John M. Kellogg, P. J.:

The contention of the relator is that the enactment of section 308 of the Code of Criminal Procedure, which requires the court to assign counsel in certain criminal cases, changes the rule of People ex rel. Hadley v. Supervisors of Albany (28 How. Pr. 22) and People ex rel. Ransom v. Supervisors of Niagara County (78 N. Y. 622), and that after the enactment of that provision of the Code of Criminal Procedure the services of counsel, on such an assignment, are a public charge. He overlooks the important fact that the section permits the payment of assigned counsel where the crime is punishable by death. That provision carries with it a recognition of the former law that in other cases compensation cannot be granted. An attorney is an officer of the court and service required by the court from him, for which no compensation is permitted by law, is not depriving him of a constitutional right. There may be cases where such an assignment might be a hardship, but the practice is so reasonable that ordinarily an assignment is not made to counsel which would conflict with his other engagements or which is not agreeable to him.

The writ is, therefore, dismissed, without costs.

All concur.

Writ dismissed, without costs.