People v Kearney

[*1] People v Kearney 2004 NY Slip Op 50146(U) Decided on March 16, 2004 County Court, Sullivan County, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2004
County Court, Sullivan County,

The People of the State of New York, Plaintiff,

against

John B. Kearney, Defendant.



Indict # 36-03



John B. Kearney, 13 Willi Hill Road, Swan Lake, N.Y. 12783,

defendant pro se, and Michael P. Graven, Esq., P.O. Box 428, Owego, N.Y.

13827, Appellate Attorney for Defendant. Hon. Stephen F. Lungen,

Sullivan County District Attorney, Monticello, N.Y. 12701, By: Bonnie

M. Mitzner, ADA, of counsel, Attorney for the People.

Frank J. LaBuda, J.

Defendant moves, Pro Se, for this Court to assign an attorney to represent him in making a 440 motion.

The People take no position.

Defendant was convicted of DWI in 2003. He is in the process of filing an appeal to the Appellate Division, Third Department. Upon advise of his appellate counsel he now requests assignment of counsel to file a 440 motion to this Court.

The Federal Constitution, through the sixth and fourteenth amendments, mandates states to appoint counsel to indigent people at trial or for the first appeal as of right. People v Richardson, 159 Misc2d 167 (Sup. Ct., Kings Cty., 1993)

The Federal Constitution does not require states to appoint counsel to indigent people in discretionary appeals, after the initial appeal as of right or in collateral proceedings. See,

People v Richardson, Supra.

Thus, the Federal Constitution does not mandate assignment of counsel herein as a 440 motion is a post-conviction collateral proceeding.

The New York State Constitution and right to counsel rulings are broader than the federal mandates but, historically, expire with disposition of charges, See, People v Robles, 72 NY2d 689, 692 (1988), and has not been extended to post-conviction proceedings. People v [*2]Richardson, Supra; People v Ramsey, 2001 NY Slip Op (Sup. Ct., Bronx Cty., unpublished, 2001).

This Court holds that an indigent person is not entitled to an assigned attorney to represent him in a post-conviction 440 motion and, thus, it is

ORDERED, that defendant's motion to have counsel appointed for the filing of his 440 motion is denied.

DATED: March 16, 2004

Monticello, N. Y.Hon. Frank J. LaBuda

Sullivan County Court Judge and Surrogate

Decision Date: March 16, 2004