People v Lowery

[*1] People v Lowery 2005 NY Slip Op 50846(U) Decided on June 6, 2005 City Court Of White Plains Friia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 6, 2005
City Court of White Plains

THE PEOPLE OF THE STATE OF NEW YORK

against

Bruce Lowery, Defendant.



04/1665



Jeanine Pirro

Westchester County District Attorney

By: Charles Rubenstein

Assistant District Attorney

White Plains Branch

77 South Lexington Avenue

White Plains, New York 10601

The Law Office of Dennis W. Light, PLLC

Attorney for Defendant

149 Grand Street, Suite 3D

White Plains, New York 10601

Jo Ann Friia, J.

Defendant's ex parte application pursuant to County Law § 722-c for an order authorizing assigned counsel to retain the services of an independent forensic laboratory to conduct a scientific test of physical evidence seized by law enforcement is denied. In this case, the Court must examine the quantum of proof required to support the discretionary grant of taxpayer funds for investigative, expert or other services in the defense of a criminal prosecution.

Background

Defendant is charged with criminal possession of a controlled substance in the seventh degree, a class A misdemeanor (PL § 220.03). The factual part of the accusatory instrument alleges in pertinent part that defendant possessed a glass pipe containing residue believed to be crack cocaine. Subsequent to defendant's arrest, the seized evidence was delivered in a manilla envelope to the Westchester County Department of Laboratories and Research, Forensic Science Laboratory and a gas chromatography/mass spectrometry analysis were conducted by two forensic scientists. The results of the laboratory test are memorialized in a supporting deposition annexed to the accusatory instrument and indicate that cocaine was present in the analyzed sample.

Defendant's Papers

In support of the application, defendant submits the affirmation of assigned counsel wherein it is averred that defendant has "steadfastly maintained his innocence of the offense charged" and that the services "of a qualified, independent forensic laboratory to conduct a scientific test of the physical evidence in this case at the expense of the County of Westchester" are necessary "to provide the defendant with an adequate defense" and "confirm the defendant's innocence." Last, "that the defendant, having met the financial criteria for the assignment of counsel, is financially unable to [*2]pay the expense for analysis of the physical evidence by a forensic laboratory." [FN1]

County Law § 722-c

Section 722-c of the County Law provides in relevant part that "[u]pon a finding in an ex parte proceeding that investigative, expert or other services are necessary and that the defendant ... is financially unable to obtain them, the court shall authorize counsel, whether or not assigned in accordance with a plan, to obtain the services on behalf of the defendant ...."

While the legislative history makes plain that the enactment of County Law § 722-c was intended to "provide increased legal services and greater representation to poor persons" (Governor's Mem. approving L 1965, ch. 878) it is equally clear that implementation of the increased legal services would have "a significant financial impact that [could not] be estimated in advance" (Mem. of the Division of the Budget, Bill Jacket, L 1965, ch. 878; see also Mem. of the Office of the Mayor, Bill Jacket, L 1965, ch. 878). A memorandum in opposition to the Bill expressed concern that the mechanism provided to a defendant for access to investigative, expert or other services at taxpayer expense opened the possibility for a "field day" without adequate investigation into defendant's actual inability to afford such services (Mem. of the Department of Law, Office of the County Attorney, White Plains, Bill Jacket, L 1965, ch. 878). Further concern was expressed regarding the legislation's failure to articulate an objective criteria for the determination of a defendant's financial inability to afford counsel and other services (Mem. of the New York State Bar Association, Bill Jacket, L 1965, ch. 878; Mem. of the New York State Association of Magistrates, Bill Jacket, L 1965, ch. 878). Notwithstanding the numerous memoranda in support of and against the Bill, it is beyond cavil that the enactment of County Law § 722-c was never intended to provide a defendant with "carte blanche" to public funds (see People v. Baker, 69 Misc 2d 882 [Sup. Ct. NY Co. 1972]).

Discussion

The decision to allocate funds under County Law § 722-c is left to the sound discretion of the trial court, upon a defense showing of necessity and inability to afford the expense of such services (see Ballew v. Walker, 2001 WL 118580 [W.D.NY 2001]; Johnson v. Harris, 682 F.2d 49 [2d Cir. 1982]; People v. Stamp, 120 Misc 2d 48 [Town Ct. Yates Co. 1983]). An extensive review of New York case law yields no bright line test for the threshold showing of necessity under the statute.

Although not expressly required under the statute, the Appellate Division has interpreted the statute to require a preliminary showing of "distinct necessity" for the requested services (see People v. Dove, 287 AD2d 806 [3d Dept. 2001]).

Case law has further held that an application for services under County Law § 722-c must demonstrate that the proposed services are necessary and relevant to the [*3]defense (see e.g. People v. Drumgoole, 234 AD2d 888 [4th Dept. 1996]; People v. Schneider, 188 AD2d 754 [3d Dept. 1992]). On this point, the mere fact that evidence is relevant does not, by itself, establish necessity (see e.g. People v. Gallow, 171 AD2d 1061 [4th Dept. 1991]).

An application under County Law § 722-c which is devoid of details concerning the necessity for services should be denied (see e.g. People v. Dove, supra). Speculative or bald assertions that investigative, expert or other services will be helpful or provide insight for the defense are insufficient (see e.g. People v. Rockwell, 2005 WL 1118165 [3d Dept. 2005]; People v. Dearstyne, 305 AD2d 850 [3d Dept. 2003]; People v. Burgess, 270 AD2d 158 [1st Dept. 2000]; Matter of Jack McG., 223 AD2d 369 [1st Dept. 1996]; People v. Marlowe, 167 AD2d 692 [3d Dept. 1990]). In contrast, an application containing specific factual details regarding the necessity for services may be granted (see e.g. People v. Jones, 210 AD2d 904 [4th Dept. 1994]; People v. Mencher, 42 Misc 2d 819 [Sup. Ct. Queens Co. 1964]).

Applying a strikingly similar statute in criminal cases, the federal courts have established helpful guidelines in determining whether a defendant is entitled to the allocation of public funds for services in furtherance of a defense. 18 U.S.C. § 3006A(e) provides in relevant part: "Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court ... shall authorize counsel to obtain the services."

Under this statute, "[a]n indigent defendant in a criminal case who desires the services of an expert witness bears the burden of showing the expert's expected testimony is necessary. In order to show necessity for expert services, a defendant in a criminal case must be specific in showing the exact expert services desired; the specific expert testimony of the expert; how and for what purpose the testimony will be used; and how the expected testimony is necessary to the defense. A showing of mere desirability of an expert is not sufficient to warrant the appointment of an expert witness at government expense" (United States v. King, 9 F.3d 118 [10th Cir. 1993]). Similarly, before a federal court will grant a request under 18 U.S.C. § 3006A(e), a defendant must demonstrate "to a reasonable probability that the expert would aid in the defense and that the denial of the expert assistance would result in an unfair trial" (United States v. Harris, 917 F.2d 1302 [4th Cir. 1990]; see also United States v. St. John, 851 F.2d 1096 [8th Cir. 1988]; Little v. Armontrout, 835 F.2d 1240 [8th Cir. 1987]).

In affirming the denial of an application pursuant to 18 U.S.C. § 3006A(e) for investigative services, the court emphasized that defendant failed to provide an explanation of the relevance of witnesses he wished to contact, he failed to identify any leads he wished to follow, and he did not demonstrate that he exhausted other investigative efforts (United States v. Davis, 582 F.2d 947, 951-952 [5th Cir. 1978]). In a like manner, denial of an application was upheld where defense counsel failed to show with specificity that investigative services were necessary or that same would produce [*4]relevant evidence (see United States v. Gadison, 8 F.3d 186 [5th Cir. 1993]; see also United States v. Janis, 831 F.2d 773 [8th Cir. 1987][court refused to grant expert services based on sheer speculation]).

Turning to defendant's application, it is evident that counsel's affirmation falls short of establishing the threshold prong of necessity. In fact, it does nothing more than profess defendant's innocence and declare that forensic testing is needed for the defense. Conspicuously absent from counsel's affirmation are specific factual details which show to a reasonable probability that the forensic services would aid in the defense or produce relevant evidence. Notably, defense counsel raises no issue with respect to the chain of custody, that the sample was tainted or that the testing procedures employed by the forensic laboratory are unreliable or otherwise inaccurate. In short, defendant has failed to make the required showing of necessity to justify his request (see e.g. People v. Pinney, 136 AD2d 573 [2d Dept. 1988]; People v. Moore, 125 AD2d 501 [2d Dept. 1986]; People v. Oquendo, 250 AD2d 419 [1st Dept. 1998]; People v. Barber, 154 AD2d 882 [4th Dept. 1989]).

It is also noted that defendant's application is supported solely by the affirmation of counsel. An attorney's affirmation alone is insufficient to support an application pursuant to County Law § 722-c, even when the court has already assigned counsel to represent the defendant (see People v. Jackson, 80 Misc 2d 595 [Co. Ct. Albany Co. 1975]; Cynthia H. v. James H., 117 Misc 2d 474 [Fam. Ct. Queens Co. 1983]). The mere fact that a defendant in a criminal action is without funds or ability to hire a lawyer does not ipso facto entitle that defendant to access public funds for investigative, expert or other services. While a finding of indigency for purposes of the assignment of counsel may have bearing upon a determination under County Law § 722-c, it is not dispositive on the issue of whether a defendant has the financial means to pay for additional services which, in some instances, will be far less expensive than the cost of an attorney. Accordingly, additional proof in the nature of a sworn affidavit from the defendant should be required to assess his financial ability to afford services allowed by the statute.

Conclusion

Consistent with the Fourteenth Amendment's due process guarantee of fundamental fairness and mindful of a defendant's right to the "basis tools" needed for meaningful representation and an adequate defense (see Ake v. Oklahoma, 470 U.S. 68 [1985]) this Court finds that the above analysis achieves a careful and fair balance between a defendant's rights and preservation of government funds.

Papers considered by the Court are as follows:

1.Affirmation of Dennis W. Light1 [*5]

2.Exhibits 1 and 22-3

THIS DECISION CONSTITUTES THE ORDER OF THE COURT

Dated:White Plains, New York

June , 2005

________________________________

HON. JO ANN FRIIA

CITY COURT JUDGE

TO:

Footnotes

Footnote 1: The defendant requests preapproval for the expenditure of one thousand dollars to obtain the subject services. Therefore, it is unnecessary to address whether extraordinary circumstances exist for purposes of compensation in excess of the requested amount (see County Law 722-c).