People v Quiroga-Puma
Annotate this CaseDecided on March 12, 2008
Justice Court of Village of Westbury, Nassau County
The People of the State of New York,
against
Rafael Quiroga-Puma, Defendant.
LX6701631
FOR THE VILLAGE:
DWIGHT D. KRAEMER, ESQ.
Village Attorney and Prosecutor
342 Post Avenue
Westbury, NY 11590
FOR THE DEFENDANT:
LAW OFFICES OF BERTRAM JORISCH
366 North Broadway
Jericho, NY 11753
Thomas F. Liotti, J.
This case was returned to our calendar on January 9, 2008 on the VTL §319-1 no proof of insurance charge. That charge was dismissed upon production of proof of insurance by the defendant. This Court previously dismissed a VTL §509-1 charge concerning this defendant. See People v. Quiroga-Puma, NY Slip Op. 27527, ___ Misc 3d ___ (2007). I have severed the two cases in order to allow the People to appeal from a final order on the §509-1 case. The People have announced their intention to perfect an appeal from that earlier determination.[FN1] Defense counsel has indicated that he has not been retained concerning an appeal. He has requested the assignment of counsel for the appeal. He has indicated that he is not on the Assigned Counsel Defender Plan Panel.
As a Notice of Appeal was filed in this case with the Appellate Term for the Supreme [*2]Court of Nassau County, this Court is without jurisdiction to assign counsel in this case. The relief sought after must therefore be denied. However, this Court believes there are serious issues which also need to be considered by the Appellate Term, the State of New York, the County of Nassau, and our Bar Association via the Assigned Counsel Defender Plan and the New York State and Nassau County Magistrates Associations.
The issues involving assigned appellate counsel are simple, but most are beyond the capacity
of this Court to address,[FN2] as they involve an appellate issue. Some of
those issues involve the adequate funding of Legal Aid, Public Defender and Assigned Counsel
programs throughout the State so that counsel for indigents may indeed be effective and advocate
with the same resources as their adversaries, the prosecutors throughout the State. This is both a
Sixth Amendment argument as it concerns the effective assistance of counsel and an equal
protection of the laws argument to provide parity with State prosecutors. There is also the issue
of the central administration of assigned counsel programs throughout the State so that the
administration of legal services to the poor do not vary from county to county where, for
example, some counties have more of a need for assigned counsel but less money available to
pay for them. There is also the issue of assigning counsel. Currently the laws in New York State
do not allow for the assignment of counsel by Village Courts in traffic infraction or local law
cases where jail sentences may reach fifteen days per violation. While all of these issues present
constitutional questions, it is the last one that this Court is confronting. Village Courts in Nassau
County have no jurisdiction over felonies and misdemeanors. See People v. Ventura, 6
Misc 3d 1001(A), 800 NYS2d 354 (2004). Yet the issues before the Court are whether this
defendant is eligible for the assignment of counsel and whether the Court has the legal right to
assign counsel to this defendant concerning the appeal or otherwise. This Court must pay
particular heed to the Supreme Court of the United States case of State of Alabama v.
Shelton, 122 S. Ct. 1764 (2002), [*3]where the Court
determined that the indigent defendant was entitled to the assignment of counsel when there was
a mere possibility of jail.
THE SIXTH AMENDMENT RIGHT TO COUNSEL
The United States Constitution Amendment VI reads in pertinent part:
"In all criminal prosecutions, the accused shall enjoy the right to...have the assistance of
counsel for his defense."
The Sixth Amendment provides for the assistance of counsel in all criminal
prosecutions. The Supreme Court of the United States first recognized the right to appointed
counsel in Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932). In Powell, nine
black youths had been charged with raping two white girls. The authorities ushered the
defendants to trial in the midst of a community firestorm, where eight defendants were convicted
and sentenced to death. On appeal, the Supreme Court held the defendants lack of access to
counsel had violated their right to a fair hearing under the Fourteenth Amendment. Shortly
thereafter, in Johnson v. Zersbt, 304 U.S. 458, 58 S. Ct. 1019 (1938), the Supreme Court
held that the right to counsel derived from the Sixth Amendment. Justice Black, writing for the
majority, held that the right to counsel applied to all criminal prosecutions, not just felonies.
Though initially the Johnson decision applied only to federal courts, and states were only
required to assign counsel under special circumstances,[FN3] the Supreme Court later expanded the
protection to the states.
In Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963), the Supreme Court expressly rejected any limitations on the right to counsel in state prosecutions. The defendant in the case, Clarence Earl Gideon, had broken into a pool hall. Declaring his indigence, the Trial Court refused to assign counsel, stating that the State of Florida only appointed counsel in capital offense cases. Gideon then mounted his defense and was convicted. He prepared his own Petition for Certiorari to the Supreme Court of the United States. The Supreme Court held that the state has an obligation to provide counsel for indigent defendants in all state criminal prosecutions, without limitation.[FN4]
The Supreme Court later expanded the right to assistance of counsel to include the assistance
of counsel during a first appeal as of right. Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963). The Court later clarified that this grant included that the assistance of counsel be
effective. Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830 (1985). In addition to these
federal rights to the assistance of counsel, New York State harbors its own separate guarantees
(detailed infra).
THE HISTORY OF ASSIGNED COUNSEL IN NEW YORK
Prior to the Supreme Court of the United States deciding Gideon v. Wainwright, 372 U.S. 335; 83 S. Ct. 792 (1963), indigent defendants had to either represent themselves pro se or rely upon the benevolence of attorneys volunteering to represent them pro bono publico. This [*4]dysfunctional system deprived countless poor people of their right under the Sixth Amendment to effective legal representation. This case presents an additional permutation to this very vexing problem, in that this defendant is not a citizen and may be an undocumented immigrant or alien.[FN5]
New York State has provided for assigned counsel for indigent defendants in criminal cases nearly eighty years before the Supreme Court of the United States made such a mandate in Gideon. The State Legislature in 1881 adopted §308 of the Criminal Procedure Law, requiring courts to appoint counsel pro bono publico for indigent defendants. In 1961, the Legislature added a provision to County Law §224(10), which authorized local governments, namely the counties, the authority to appropriate their own funds to contract with private agencies. The most notable use of this authority caused the creation of the Legal Aid Society in New York City.
The New York Court of Appeals later set a striking precedent for state courts: indigent defendants in all cases, not merely felonies, have the right to appointed counsel. People v. Witenski, 15 NY2d 392, 259 NYS 413 (1965). Much like the Supreme Court of the United States did in Douglas, the New York Court of Appeals granted a right to assignment of counsel to such appeal as a statutory right. People v. Hughes, 15 NY.2d 172, 256 NYS2d 803 (1965). This right also includes the right for that assistance of counsel to be effective. People v. Gonzalez, 47 NY2d 606, 419 NYS2d 913 (1979). In Hughes, the Court of Appeals held that the right to assistance of counsel means more than just having a person with a law degree nominally representing a defendant- the representation must be effective. Ibid, at 610.
The New York State Legislature adopted Article 18-B of the County Law in 1965. Article
18-B requires local governments to enact plans to provide for the legal representation of indigent
defendants. Prior to these formal requirements, indigent defendants and the courts relied on
attorneys working pro bono publico. The new system offered local governments options
for how to provide for the assignment of counsel. The Legislature has a less-than-frequent record
of raising assigned counsel fees. Bar Associations, individual attorneys, and indigent defendants
(represented pro bono publico) were reduced to litigation in their attempts to raise
assigned counsel fees, which the Legislature failed to do for nearly two decades following the
1986 increase.[FN6] In
2005, the New York State Bar Association issued suggested standards for [*5][*6]improving the current assigned
counsel system.[FN7] The
Doyle Report, so-named after its chairman Vincent Doyle, III Esq., proposed the creation of
publicly-funded state-wide entity headed by a commissioner to monitor standards of
representation.
UNCONSTITUTIONALITY OF ARTICLE 18-B
This Court has previously held that Village Courts have a constitutional obligation to assign counsel to indigent defendants where there is a mere possibility of jail.[FN8] New York County Law Article 18-B §722 provides:
"In criminal proceedings, representation by counsel furnished by a private legal aid bureau or
society designated by the county or city, organized and operating to give legal assistance and
representation to persons charged with a crime within the city or county who are financially
unable to obtain counsel."
Further, County Law Article 18-B §722-a provides:
For the purposes of this article, the term "crime" shall mean a felony, misdemeanor, or the
breach of any law of this state or of any law, local law or ordinance of a political subdivision of
this state, other than one that defines a "traffic infraction," for which a sentence to a term of
imprisonment is authorized upon conviction thereof.
As noted earlier, this Court does not have jurisdiction over felonies and
misdemeanors, only violations. Although the §722-a catch-all provision would normally
apply, both VTL §509 and §319 are traffic infractions, which are excepted under
that catch-all provision. Regardless, pursuant to VTL §§ 509 and 319, the charges
carry with them a possible sentence of jail time. [*7]These
violations do not qualify for the appointment of counsel under Article 18-B because they are not
felonies or misdemeanors, yet carry with them some of the same penalties as a felony or
misdemeanor; to wit: jail time.
This Court has a duty to assign counsel regardless of the level of a crime, be it felony, misdemeanor, or violation, if a jail term becomes an option for sentencing. The Court is prohibited from doing so under Article 18-B. This Court holds that the Defendant's Constitutional right to counsel supercedes the State's laws. Article 18-B fails to provide the necessary guarantees within our justice system for indigent defendants, and as such, is unconstitutional. Since this Court is divested of jurisdiction and is therefore denying the application for the assignment of counsel, its holding regarding the unconstitutionality of Article 18-B is dicta.
The defendant here must defend against the §509 charge before the Appellate Term, or have this Court's dismissal overturned without opposition. Pursuant to County Law Article 18-B, §722, authority lies with the appropriate Appellate Term to assign counsel.
The Court notes that our State has considered our lowly Village and Town Courts to be of little significance since we deal primarily with Vehicle and Traffic and Local Laws or Village Code cases. We are the stepchildren, the toy courts that generate substantial income for the State and our municipalities, yet we often must operate on a shoe string and our cases are not considered to be important enough to address constitutional concerns. What's all the ruckus? It is that these courts and the defendants who come before them, their lawyers when they can afford them and court personnel, have been sorely neglected for too long. In short, the silence on these issues by bar leaders, elected officials and administrative members of the judiciary, has been deafening.
This Court writes this decision and all others to highlight its concern about these subjects, calling to arms those in our society who chose to undertake constructive measures to do something about them. As long as this jurist is a Village Justice, he will follow his oath of upholding our United States and New York Constitutions. And, he will also do his best to inspire all others to do likewise. If silence is acceptance, then this Court will never remain silent when it is faced with correctable, remediable inequities in our system of laws and jurisprudence.
This Court has addressed possible Tenth Amendment violations in its December 20, 2007 decision. The federal government is now mandating requirements for licensing drivers which, in this Court's view, unfairly discriminate against aliens. Because indigent defendants must be provided with counsel, and the funding must come from some source, the federal government might also consider shouldering the burden of providing these undocumented aliens with counsel. The federal government could reimburse the states for providing counsel. One such program already exists: the Department of Justice operates the State Criminal Alien Assistance Program [FN9], which reimburses state governments for the costs of detaining undocumented alien inmates.[FN10]
The County Law Article 18-B, §722-b(3) also provides "In extraordinary
circumstances a [*8]trial or appellate court may provide for
compensation in excess of the foregoing limits and for payment of compensation and
reimbursement for expenses before the completion of the representation." The defendant through
his counsel has asked for the assignment of counsel for purposes of defending against an appeal.
The Defendant is apparently indigent in that he cannot afford the services of an attorney for that
appeal. While this Court is without the legal authority to assign counsel on appeal, it is apparent
that if 18-B is unconstitutional because it does not allow for the assignment of counsel by Town
and Village Justices in violation cases. Thus, the statute needs to be amended to provide for the
assignment of counsel in these courts and cases. This Court respectfully refers the matter to the
Appellate Term and the Assigned Counsel Defender Plan for a consideration of these issues. If
they do not act then the defendant will be unable to defend against the appeal and may thereafter
be once again subject to the possibility of a jail sentence. The Village may in fact win their
appeal from this Court's decision by default because the defendant can not afford to defend
against the appeal. If that is so, then the State and this County will allow a gross inequity to occur
which will have a ripple effect throughout the State and nation. No one charged with a violation
and who is in forma pauperis and where there is a possibility of jail should be denied the
assignment of effective counsel.
Dated:Westbury, New York
March 12, 2008
SO ORDERED:
_____________________________
Hon. Thomas F. Liotti
Village Justice
Footnotes
Footnote 1: See, Ruben v. American and
Foreign Ins. Co., 185 AD2d 63, 592 N.Y.S.2d 167 (NY App. Div. 4th Dept., 1992),
regarding divestiture of jurisdiction. The trial court retainsjurisdiction for all other purposes
except matters related to the appeal. See also, CPLR §4405 which states: "A motion under
this Article shall be made before the judge who presided at trial within 15 days after decision,
verdict or discharge of the jury. The Court shall have no power to grant relief after argument or
submission of an appeal from the final judgment."
Footnote 2:Pursuant to Article III of the
United States Constitution, courts may only consider cases in controversy, and may not render
advisory opinions. This distinction was first raised in 1793, when President George Washington
instructed then-Secretary of State Thomas Jefferson to write to the Supreme Court of the United
States in order to ascertain the legal ramifications of the United States' neutrality in various
European wars being waged at that time. Chief Justice John Jay wrote the following response:
"The Lines of Separation drawn by the Constitution between the three Departments
of Government-their being in certain Respects checks upon each other-and our being Judges of a
court in the last Resort-are Considerations which afford strong arguments against the Propriety of
our extrajudicially deciding the questions alluded to; especially as the Power given by the
Constitution to the President of calling on the Heads of Departments for opinions, seems to have
been purposely as well as expressly limited to the executive Departments.
We exceedingly regret every Event that may cause Embarrassment to your
administration; but we derive Consolation from the Reflection, that your Judgment will discern
what is Right, and that your usual Prudence, Decision and Firmness will surmount every obstacle
to the Preservation of the Rights, Peace, and Dignity of the United States.
We have the Honor to be, with perfect Respect, Sir, your most obedient and most
humble Servants."
Footnote 3:For example, when capital
punishment was a possible penalty. Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252 (1942).
Footnote 4:See, Liotti, Thomas F. "Does
Gideon Still Make A Difference?" 2 NY City L. Rev. 105 (1998).
Footnote 5:For reasons set forth hereinafter,
this Court has deliberately not inquired about this subject.
Footnote 6:See, Liotti v. State of New
York (EDNY, 2000); New York County Lawyers' Association v. Pataki (Sup. Ct.
NY Cty., 2000). In Liotti v. State of New York, County of Nassau, et al., E.D.NY,
Docket No. CV 00-2335, this Justice, pro bono publico, as a private attorney and bar
leader commenced an action in federal court during the 18-B funding and rate crisis, alleging that
the defendants were systematically violating the Supreme Court mandate of Gideon, id.,
by not providing sufficient pay to assigned counsel. This became the first case of that genre
which others sought to copycat later. The case was assigned to the Hon. Joanna Seybert. The Bar
Association settled becoming an advocate for an increase in assigned counsel fees and changing
their system of assignment to a random, rotational model so as to more evenly distribute
assignments among members of the panels. The action against the State was dismissed on
Eleventh Amendment grounds and the action against the county survived a motion for summary
judgment, but Judge Seybert provided in her decision that an element of proof would have to
include evidence that sanctions had been imposed against assigned counsel attorneys based upon
the inadequate pay they had received. This became an impossible burden to meet and the plaintiff
agreed to a voluntary dismissal and no appeal was taken. Yet, the primary purpose of the case
succeeded in drawing much needed attention to the issue of constitutional magnitude which then
enlisted other bar groups into legal action and ultimately caused the State to increase rates rather
than continuing to incur the costs and embarrassment of this litigation. See Michael A. Riccardi,
Class Action Lawsuit Challenges 18-B Fee Structure, New York Law Journal at 1 and 2;
New York City News, National Lawyers Guild N.Y.C. Chapter, February, 2000, Call to Raise
Assigned Counsel Rates; Catherine Schmoller, Editor of the Attorney of Nassau County,
Assigned Counsel Fees: `You Get What You Pay For,' February, 2000 at 3, 15 & 16;
Robin Topping, A Lawyer's Case For More Pay, Says Court-Appointed Attorneys
Underpaid, Newsday, February 9, 2000 at A24; Michael A. Riccardi, Second Lawsuit
Challenges Rule 18-B Fee Schedule, New York Law Journal, February 22, 2000 at 1 and 4;
Susan T. Kleuwer, Board of Directors Take Action, Nassau Lawyer, Journal of the
Nassau County Bar Association, March, 2000, Vol. 48, No. 2 at 1 & 22; Thomas F. Liotti,
Letters to the Editor, System Breakdown Seen As Imminent, New York Law Journal,
March 13, 2000 at 2; Editorial, Don't Make Paupers of Lawyers Who Help the Poor,
Newsday, March 20, 2000 at A 26; Catherine Schmoller, (2 articles), The Right to Counsel
and Suits Seek to Force Fee Hike and Report: Give Assigned Counsel a Raise, The
Attorney of Nassau County, March, 2000, Vol 6, No. 19 at 1 and 12; NCBA Lobby for 18-B
Fees, Nassau Lawyer, April, 2000 at 3; Joel K. Asarch, President's Column, Are We
Doing Enough For Our Members?, The Nassau Lawyer, April, 2000 at 4; John Caher,
Proposed Budget Has No Increase For 18-B Fees, New York Law Journal, April 6, 2000
at 1 & 8; Joel K. Asarch, President's Column, Board United In Seeking Increased 18-B
Fees, May, 2000 at 4 & 22 and Richard D. Collins, Update On Assigned Counsel Rates:
Part II, May, 2000 At 17, The Nassau Lawyer; Criminal Practice Guide, May 17, 2000, Vol.
1, No. 5, published by Pike & Fischer, Inc., a subsidiary of the Bureau of National Affairs, Inc., a
supplement to The BNA Criminal Practice Manual and The Criminal Practice Report, see
New York Attorney's Effort to Raise Fees, Obtaining Funding to Pay for Better Indigent
Defense Services at 4; Robert E. Kessler, Widows Fight For Lawyer's Fee, Say Only
Their Counsel Earned It, Newsday, May 18, 2000 at A8 Y A60; Zachary R. Dowd, Around
The Island, Crime & Courts, Lawyers-For-Poor Plan: An "Illusion of Justice?"
Wednesday, June 28, 2000 at A303. Full Amended Verified Complaint and settlement papers
reprinted in the New York State Bar Association, Criminal Justice Section Journal, Summer,
2000, Vol. 8, No. 1. Cited at 11, footnote #24 of the New York State Bar Association, Special
Committee on Public Trust and Confidence in the Legal System, Report to the House of
Delegates: Enhancing Public Trust and Confidence in the Legal System, October, 2000.
Peter Sloggat, Task Force To Study Fee Hikes, The Attorney of Nassau County, January,
2001 at 4. See, New York Law Journal, March 26, 2001 at 35, col. 3 for a copy of Decision
dismissing the action as to the State and Leigh Jones, State Dismissed As Party In 18-B
Suit, March 26, 2001 at LI-2. See also, Thomas F. Liotti, Post Opinion, N.Y.'s Coming
Guarantee: An Unfair Trial, Op-Ed article appearing in the New York Post on Wednesday,
April 4, 2001 at 31. See, also, Liotti v. New York State, New York Law Journal, March
26, 2001 at 35, cols. 3, 4, 5 and 6 for a decision by Judge Seybert, granting the motion to dismiss
as to the State. See Laura Mansneurs, A Brake On The Wheels Of Justice, Shortage Of
Lawyers For The Poor Plagues The Courts, The New York Times, January 17, 2001 at B1
and Robin Topping, Law & Order Column, Around The Island, Crime & Courts, Attorneys
Protest Low Pay For Indigent Cases, Newsday, January 17, 2001 at A31. See also, Robin
Topping, Around The Island, Putting A Price Tag On The Right To Counsel, Newsday,
August 21, 2002 at A23. See Andrew Harris, Judge Narrows Suit Challenging Impact of Low
18-B Rates, New York Law Journal, September 29, 2004 at 1 and 2. See Peter R. Schlam
and Harvey M. Stone, Article 18-B, Abstention, Hiring and Discrimination, Pleadings,
Eastern District Roundup. The New York Law Journal, October 8, 2004 at 3 & 5; News to Note,
Lawsuit Attacking 18B System Survives Motion to Dismiss, The Mouthpiece,
November/December, 2004 at 23.
Footnote 7:Caher, John. "Statewide
Standards Urged for Indigent Defense Counsel." 4/26/2005 NYLJ 1, (col. 3)
Footnote 8:People v. Daniel Louis,
New York Law Journal, March 15, 1999 at 1, 25 and 33. For many years this Court has had an
informal agreement with the Assigned Counsel Defender Plan Office that it may assign counsel
in violation cases if there is a possibility of jail and if the defendant is, in fact, indigent.
Footnote 9: The Department of Justice
Reauthorization Act of 2005, Pub. L. 109-162 (2005).
Footnote 10: Editorial, "Feds should pay
for jailing undocumented immigrants." Newsday, March 5, 2008.
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