§ 722 — Plan for representation

New York § 722

• Jurisdiction: New York
• Law CNT: County
• Art. 18-B: Representation of Persons Accused of Crime or Parties Before the Family Court or Surrogate's Court

Text

§ 722. Plan for representation. The governing body of each county and\nthe governing body of the city in which a county is wholly contained\nshall place in operation throughout the county a plan for providing\ncounsel to persons charged with a crime or who are entitled to counsel\npursuant to section two hundred sixty-two or section eleven hundred\ntwenty of the family court act, article six-C of the correction law,\nsection four hundred seven of the surrogate's court procedure act or\narticle ten of the mental hygiene law, who are financially unable to\nobtain counsel. Each plan shall also provide for investigative, expert\nand other services necessary for an adequate defense. The plan shall\nconform to one of the following:\n 1. Representation by a public defender appointed pursuant to county\nlaw article eighteen-A.\n 2. In criminal proceedings, representation by counsel furnished by a\nprivate legal aid bureau or society designated by the county or city,\norganized and operating to give legal assistance and representation to\npersons charged with a crime within the city or county who are\nfinancially unable to obtain counsel. In proceedings under the family\ncourt act, representation by a private legal aid bureau or society, or\nby any corporation, voluntary association, or organization permitted to\npractice law under the authority of subdivision five of section four\nhundred ninety-five of the judiciary law.\n 3. (a) Representation by counsel furnished pursuant to either or both\nof the following: a plan of a bar association in each county or the city\nin which a county is wholly contained whereby: (i) the services of\nprivate counsel are rotated and coordinated by an administrator, and\nsuch administrator may be compensated for such service; or (ii) such\nrepresentation is provided by an office of conflict defender.\n (b) Any plan of a bar association must receive the approval of the\noffice of indigent legal services before the plan is placed in\noperation. In the county of Hamilton, representation pursuant to a plan\nof a bar association in accordance with subparagraph (i) of paragraph\n(a) of this subdivision may be by counsel furnished by the Fulton county\nbar association pursuant to a plan of the Fulton county bar association,\nfollowing approval of the office of indigent legal services. When\nconsidering approval of an office of conflict defender pursuant to this\nsection, the office of indigent legal services shall employ the\nguidelines it has heretofore established pursuant to paragraph (d) of\nsubdivision three of section eight hundred thirty-two of the executive\nlaw.\n (c) Any county operating an office of conflict defender, as described\nin subparagraph (ii) of paragraph (a) of this subdivision, as of March\nthirty-first, two thousand ten may continue to utilize the services\nprovided by such office provided that the county submits a plan to the\nstate administrator within one hundred eighty days after the\npromulgation of criteria for the provision of conflict defender services\nby the office of indigent legal services. The authority to operate such\nan office pursuant to this paragraph shall expire when the state\nadministrator (or, on or after April first, two thousand nineteen, the\noffice of indigent legal services) approves or disapproves such plan.\nUpon approval, the county is authorized to operate such office in\naccordance with paragraphs (a) and (b) of this subdivision.\n (d) For purposes of this subdivision, any plan of a bar association\napproved hereunder pursuant to this subdivision, as provided prior to\nApril first, two thousand nineteen, shall remain in effect until it is\nsuperseded by a plan approved by the office of indigent legal services\nor disapproved by such office.\n 4. Representation according to a plan containing a combination of any\nof the foregoing. Any judge, justice or magistrate in assigning counsel\npursuant to sections 170.10, 180.10, 210.15 and 720.30 of the criminal\nprocedure law, or in assigning counsel to a defendant when a hearing has\nbeen ordered in a proceeding upon a motion, pursuant to article four\nhundred forty of the criminal procedure law, to vacate a judgment or to\nset aside a sentence or on a motion for a writ of error coram nobis, or\nin assigning counsel pursuant to the provisions of section two hundred\nsixty-two of the family court act or section four hundred seven of the\nsurrogate's court procedure act, or in assigning counsel to a defendant\nwhen a case has been calendared for consideration of resentencing\npursuant to subdivision four of section six hundred one-d of the\ncorrection law or when a court is otherwise called upon to consider\nwhether a proper term of post-release supervision was imposed as part of\na determinate sentence, shall assign counsel furnished in accordance\nwith a plan conforming to the requirements of this section; provided,\nhowever, that when the county or the city in which a county is wholly\ncontained has not placed in operation a plan conforming to that\nprescribed in this subdivision or subdivision three of this section and\nthe judge, justice or magistrate is satisfied that a conflict of\ninterest prevents the assignment of counsel pursuant to the plan in\noperation, or when the county or the city in which a county is wholly\ncontained has not placed in operation any plan conforming to that\nprescribed in this section, the judge, justice or magistrate may assign\nany attorney in such county or city and, in such event, such attorney\nshall receive compensation and reimbursement from such county or city\nwhich shall be at the same rate as is prescribed in section seven\nhundred twenty-two-b of this article. When a case has been calendared\nfor consideration of resentencing pursuant to subdivision four of\nsection six hundred one-d of the correction law or when a court is\notherwise called upon to consider whether a proper term of post-release\nsupervision was imposed as part of a determinate sentence, the attorney\nappointed should be the attorney who appeared for the defendant in\nconnection with the judgment or sentence or, if the defendant is\ncurrently represented concerning his or her conviction or sentence or\nwith respect to an appeal from his or her conviction or sentence, such\npresent counsel.\n 5. In classification proceedings under article six-C of the correction\nlaw or from an appeal thereof, representation shall be according to a\nplan described in subdivisions one, two, three or four of this section.\nIf such plan includes representation by a private legal aid bureau or\nsociety, such private legal aid bureau or society shall have been\ndesignated to give legal assistance and representation to persons\ncharged with a crime.\n Upon an appeal in a criminal action, and on any appeal described in\nsection eleven hundred twenty of the family court act, article six-C of\nthe correction law or section four hundred seven of the surrogate's\ncourt procedure act, wherein the party is financially unable to obtain\ncounsel, the appellate court shall assign counsel furnished in\naccordance with the plan, conforming to the requirements of this\nsection, which is in operation in the county or in the city in which a\ncounty is wholly contained wherein the judgment of conviction,\ndisposition, or order of the trial court was entered; provided, however,\nthat when such county or city has not placed in operation a plan\nconforming to that prescribed in subdivision three or four of this\nsection and such appellate court is satisfied that a conflict of\ninterest prevents the assignment of counsel pursuant to the plan in\noperation, or when such county or city has not placed in operation any\nplan conforming to that prescribed in this section, such appellate court\nmay assign any attorney in such county or city and, in such event, such\nattorney shall receive compensation and reimbursement from such county\nor city which shall be at the same rate as is prescribed in section\nseven hundred twenty-two-b of this chapter. Assignment of counsel upon\nan appeal in a criminal action pursuant to this subdivision, or pursuant\nto paragraph b of subdivision one of section thirty-five of the\njudiciary law, includes authorization for representation by appellate\ncounsel, or an attorney selected at the request of appellate counsel by\nthe administrator of the plan in operation in the county (or city in\nwhich a county is wholly contained) where the conviction was entered,\nwith respect to the preparation and proceeding upon a motion, pursuant\nto article four hundred forty of the criminal procedure law, to vacate a\njudgment or to set aside a sentence or on a motion for a writ of error\ncoram nobis; compensation and reimbursement for such representation and\nexpenses shall be governed by sections seven hundred twenty-two-b and\nseven hundred twenty-two-c of this article.\n