People v Louisseize
Annotate this CaseDecided on June 9, 2010
Just Ct, Vil. of Westbury, Nassau County
The People of the State of New York, Plaintiff,
against
Stanley Louisseize, Defendant.
09110008
FOR THE VILLAGE:DWIGHT D. KRAEMER, ESQ.
Village Attorney and Prosecutor
Westbury Village Hall
235 Lincoln Place
Westbury, NY 11590
FOR THE DEFENDANT:ANTHONY MASTROIANNI, ESQ.
Pro Bono Publico
355 Post Avenue
Westbury, NY 11590
Thomas F. Liotti, J.
This Court had before it a defendant twice charged and once convicted of driving at high speeds, both at 102 mph in 55 mph zones in violation of New York State's Vehicle and Traffic Laws, thus subjecting him to a possible fine of $450.00 and a surcharge of $85.00; the revocation of his license and fifteen days in the Nassau County Jail. After at first bench warranting in this Court and being returned on that warrant, the defendant, age 18, appeared with his mother who posted $500.00 in bail on his behalf. The defendant was then released on bail but the Court strongly encouraged the defendant to secure counsel before his next court appearance. This Court rejected the plea bargain as proposed by the prosecutor. The defendant indicated that he was unemployed, indigent and could not afford counsel. After that arraignment and before his next court appearance, the defendant was arrested on alleged gang related felony charges. Those charges were pending in Nassau's District and County Courts. The defendant was produced in this court in shackles by the Nassau County Sheriff's Department. He appeared with his mother and still without counsel. He was represented on the felony charges by either Legal Aid or 18-B counsel, but they were not assigned to represent him on the charges before this Court.
Between court dates in this court, I contacted Nassau's Assigned Counsel Defender Plan Administrator to determine whether I could assign 18-B counsel to the defendant. The [*2]Administrator, a distinguished attorney, former prosecutor and a Professor of Law, informed this Court that it (the Court) was not authorized under Article 18-B to assign counsel in a violation case. This then posited with me a serious constitutional question in this Court and a case of first impression statewide. It has wide reaching implications for this Court, but also for all other courts with violation cases before them where the possibility of jail is among the penalties that may be imposed. See Morris, et al., A Practice Guide to Village, Town and District Courts in New York", (Lawyers Cooperative Publishing Company, Rochester, New York (now Thompson West, St. Paul, Minnesota, 1995-Present).[FN1] This Village Justice is a co-author of the aforementioned treatise.
In a previous opinion and order, this Court directed the Attorney General of the State of New York to appear before it and show cause why Article 18-B of the County Law should not be declared unconstitutional. The full opinion and order were published in the New York Law Journal on June 4, 2010. See New York Law Journal, Decisions in the News, People v. Louisseize, New York Law Journal, June 4, 2010 at 46 and Joel Stashenko, A.G.'s Office Declines to Defend Law That Prevents Appointment of Counsel in Serious Traffic Offenses, New York Law Journal, June 4, 2010 at 1 and 5.
Having been placed on notice of this Court's intentions, the Attorney General responded as follows: Dear Judge Liotti:I write in response to the Court's order dated May 10, 2010, which directed the Attorney General to show cause why County Law article 18-B should not be declared unconstitutional.The Attorney General respectfully declines to respond to the order for two independent reasons. First, there is no longer any live case pending before the [*3]Court. The Court's memorandum indicates that the underlying traffic violation was resolved last month by a guilty plea and fine. The parties to the case therefore no longer have a stake in the constitutional question the Court has raised.Second, the Attorney General was not a party, and could not have been joined as a party, when the case was pending. As the Appellate Division recently explained:
[W]hen the constitutionality of a statute is challenged in an action or proceeding to which the State is not a party, the Attorney General may, upon notification of the challenge, choose to intervene in support of its constitutionality if he or she be so inclined (see CPLR 1012[b][1], [3]; Executive Law § 71). There is no authority, however, for the Supreme Court to compel the Attorney General to intervene, or to join the State as a party in such case. Matter of Walsh v. Katz, 66 AD3d 1052, 1055-56 (2d Dep't 2009). Moreover, while the Court's order seems to contemplate issuing a declaratory judgment, no plaintiff has sued the Attorney General or the State for a declaratory judgment seeking such a declaration.The issues raised by the Court are serious ones that deserve careful attention from all branches of government. This Court's memorandum will no doubt contribute to the public discourse on the matter. But this case does not present an appropriate vehicle for a judicial ruling on the constitutionality of article 18-B. Should the question arise again in a proper procedural posture, there will be ample opportunity for the courts to address the matter then.
Sincerely,
Benjamin N. Gutman
Deputy Solicitor General
Unfortunately, while the Attorney General's response may, in some respects, be viewed as a
concession that the law is unconstitutional or that my memorandum decision and order may have
an affect regarding public policy statewide, it also skirts the issue of the unconstitutionality of
the law statewide. It purportedly hangs its hat on procedure which either deprives the Court of
deciding the question or limits the impact of the decision to this Village alone. That response
does nothing to address the issue. It appears to be, at least in this Court's view, a political cop-out
by an Attorney General seeking election as Governor and a State Legislature engulfed in a State
budget deficit of over $9 billion - the worst state of affairs in this State's history. While school
budgets and other matters may appear to be a higher priority for most of the public and elected
representatives, in this Court's opinion, there can be no higher priority than the Bill of Rights and
the oath which this Court has taken to uphold it. This Court does not preside over budgetary or
legislative matters, it presides over the Constitution and in this case, the Sixth Amendment's
provisions regarding the right to counsel are of paramount importance. This Court will not
ignore this issue for political or other reasons and respectfully suggests that this State's [*4]and this nation's dire financial condition has, in large measure, been
created due to decision making for political purposes rather sound business judgments and sound
public policies. This Court does not have the luxury of deferring constitutional questions to
another time and place. That buck stops here in this Court and in every other charged with the
inherent responsibility of judicial review, an unquestioned obligation bestowed upon us as a
constitutional premise and foundation of our form of government since Chief Justice John
Marshall decided it more than two hundred years ago in Marbury v. Madison, 5 U.S. 137
(1803). It is not the function of this Court to determine the cost effectiveness of its rulings or
what is politically popular. It is the function of this Court to determine the constitutionality of the
laws that come before it. In doing so, the Court must look to the words of the Constitution in
hac verba, the original intent of our Founders in that regard and prior decisions that have
interpreted a particular provision of the Constitution, in this case, the Sixth Amendment of the
United States Constitution, which provides:
Amendment 6
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.
The legal question then is whether Article 18-B of the County Law is constitutional. More specifically where that law provides for the assignment of counsel to an indigent defendant who is accused of a crime, such as misdemeanors or felonies, it does not allow for the assignment of counsel in the case of violations where there is a possibility of jail and other serious penalties.
While this is a Local Criminal Court, the Village Courts of Nassau County do not preside over misdemeanors or felonies.[FN2] We are not Courts of Record and we do not conduct jury trials. We do not have the benefit of Probation Reports or the power to sentence someone to probation. While all of the Village Justices and Associate Village Justices in Nassau, more than one hundred twenty of us in the sixty two villages here, are attorneys, we are not by law required to be.[FN3] We are part-time jurists, some of us are paid and others are not. Yet, throughout this State non-lawyer Village and Town Justices, approximately fifteen hundred in all, preside over felony arraignments and exams; misdemeanors and violations. If an indigent defendant comes before [*5]these judges and is charged with a crime, then they are eligible for the assignment of counsel, in other words, a free lawyer to represent their best interests. An indigent defendant charged with one or more violations of State or Local Laws where they may be facing fifteen days on each violation, is ineligible for the assignment of counsel.
Article 18-B § 722-a of the County Law provides:
§ 722-a. Definition of crime
For the purpose 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,[FN4] other than one that defines a "traffic infraction," for which a sentence to a term of imprisonment is authorized upon conviction thereof.
It was created in the aftermath of Gideon v. Wainwright, 372 U.S. 335 (1963), which mandated that any indigent defendant charged with a crime shall be eligible for the assignment of counsel. The Supreme Court of the United States made its ruling binding upon the states under the Fourteenth Amendment.
Clarence Gideon with little more than a pencil and paper, writing from a jail cell in Florida, has shaped the right to counsel in state and federal courts to this day. The venerated holdings in Gideon, supra and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), did more to insure fundamental fairness in the criminal law than the Founders did in enacting the Bill of Rights in the first place.[FN5] Laws can have all the accoutrements of fairness attached to them but they will be of no avail if judges do not have the courage and foresight to review them.[FN6]
Since the holding in Gideon, we have learned that counsel must also be effective.
See, Strickland v. Washington, 466 U.S. 668 (1984); Jenkins v. Coombe, 821 F.2d 158 (1987) and
Lopez v. Scully, 58 F.3d 38 (2d Cir.1995).It is apparent that a system
that relies upon pro bono publico defense counsel or one with underpaid lawyers who
cannot match the pay and resources [*6]of prosecutors, is
inherently dysfunctional.[FN7] A Legislature or Executive Branch of [*7]Government that ignores these realities is dysfunctional in itself.
The mandate of Gideon cannot be met unless all courts are able to provide effective legal
representation to the poor in any case where there is a mere possibility of jail. See, Alabama
v. Shelton, 122 S. Ct. 1764 (2002).
Notwithstanding the holding of Gideon and its progeny, the State's response to it has been lackluster at best, providing inadequate funding for Publico Defenders, Legal Aid attorneys and assigned counsel statewide. In the forty five years since its enactment, Article 18-B has served as little more than a band aid solution to a justice system hemorrhaging with a panoply of endemic, vexing, societal problems which become even more critical in times such as these where the recession, a failing economy, budgetary deficits, wars and environmental disasters compete for funding with the justice system. But again, while many of these issues may have been unforeseen circumstances, unplanned events, emergencies or necessaries, the Constitution is with us each and every day, in good times and bad. It is our highest priority and the corners of it should never be cut. This is truly our greatest legacy as a nation. We are a nation of laws where freedom, liberty and due process are our highest priorities.
Pandering politicians have answered the call for real reforms in the justice system with harsh sentences and more jails. As we have seen in the case of the so-called Rockefeller Drug Laws and the Federal Sentencing Guidelines, their solutions have not been solutions at all to the causes of crime within our society. On the other hand, they have ruined countless lives and burdened taxpayers with insanely high taxes.[FN8] [*8]
In light of the oath which I have taken to uphold, protect
and defend the Constitutions of the United States and New York State, I must declare Article
18-B unconstitutional and I therefore do so. Since I am merely a Village Justice from a small
Long Island community, my words may not resonate anywhere else. Nonetheless, it is my
obligation to write them.
Dated:Westbury, New YorkSO ORDERED:
June 9, 2010
______________________________
Hon. Thomas F. Liotti
Village Justice
Footnotes
Footnote 1: See a book review by Fahringer,
Herald Price, A Tour of our Frontline Courts, Village, Town & District Courts in New
York, The Mouthpiece (a publication of the New York State Association of Criminal Defense
Lawyers), Vol. 11, No. 5, September\October, 1998 at 17 and 18 and book review by Fahringer,
Herald Price, New York State Bar Journal, November, 1998 at 56 and 57. See also, Fahringer,
Herald Price, The Lawyer's Bookshelf, Village, Town and District Courts in New York,
a book review, New York Law Journal, April 27, 1999 at 2. See also, Report to the House of
Delegates: Enhancing Public Trust and Confidence in the Legal System, published by
the New York State Bar Association's Special Committee on Public Trust and Confidence in the
Legal System, October, 2000. References to the book appear at pp. 47 and 48, footnotes 101 and
102. Also, the New York State Bar Association Criminal Justice Section Journal (Winter, 1998)
is cited and a book review of our book by Herald Price Fahringer, A Tour of Our Front Line
Courts, as it appeared in the Criminal Justice Section Journal, et al. (Criminal Justice
Journal, Winter, 1998) at 128. See Ken Strutin, a book review of the 2001 edition, The Public
Defense Backup Center Report, published by The Defender Institute, The New York State
Defenders Association, Vol XVII, Number 5, September-October, 2002. "This encyclopedic
work is well organized and comprehensive. The authors have done a great service by focusing
attention on local court law."
Footnote 2: See, People v. Ventura,
3 Misc 3d 1107(A), 787 NYS2d 680 (NY Just. Ct., 2004).
Footnote 3: See William Glaberson, In
Tiny Courts of New York, Abuses of Law and Power", New York Times, p. 1, September
25, 2006; William Glaberson, Delivering Small-Town Justice, With a Mix of Trial and
Error, New York Times, p. 1, September 26, 2006; William Glaberson, How a Reviled
Court System Has Outlasted Many Critics, New York Times, p. 1, September 27, 2006; and
William Glaberson, State's Justice Courts to Face Scrutiny by Assembly Panel, New
York Times, p. 1, October 14, 2006.
Footnote 4: Village Justices in this County
do not assign counsel at all even in violation cases where fines can be as high as ten thousand
dollars per violation together with jail terms of 15 days per violation.
Footnote 5: See Thomas F. Liotti, Does
Gideon Still Make a Difference? New York City Law Review, Edited by the students of The
City University of New York School of Law, a Journal of Law in the Service of Human Needs,
Volume Two, Summer, 1998, Number Two, pp. 105-137. See Podgor, Ellen S., Reviews In
Review, Gideon in New York, The Champion, a publication of the National Association
of Criminal Defense Lawyers, June, 1999 at 48. This is a review of Mr. Liotti's Law Review
article by Prof. Podgor of the Georgia State University College of Law.
Footnote 6: See Benjamin N. Cardozo,
The Nature of the Judicial Process, 142 (1921), "when the law has left the situation
uncovered by any pre-existing rule, there is nothing to do except to have some impartial arbiter
declare what fair and reasonable men, mindful of the habits of life of the community, and of the
standards of justice and fair dealing prevalent among them, ought in such circumstances to do."
Footnote 7: See, Liotti v. State of New
York, County of Nassau, et al., E.D.NY, Docket No. CV 00-2335, Magistrate Michael
Orenstein and District Judge Joanna Seybert. See Riccardi, Michael A., Class Action Lawsuit
Challenges 18-B Fee Structure, New York Law Journal at 1 and 2. On behalf of himself and
all attorneys and counselors at law, Mr. Liotti commenced a lawsuit against the defendants,
alleging that Article 18-B of the County Law of the State of New York should be declared
unconstitutional because the defendants have not lived up to the mandate of Gideon v.
Wainwright. See, New York City News, National Lawyers Guild—N.Y.C. Chapter,
February, 2000, Call to Raise Assigned Counsel Rates. Article in part about Mr. Liotti
and his lawsuit; Catherine Schmoller, Editor of the Attorney of Nassau County, Assigned
Counsel Fees: `You Get What You Pay For,' February, 2000 at 3, 15 & 16; Topping, Robin,
A Lawyer's Case For More Pay, Says Court-Appointed Attorneys Underpaid, Newsday,
February 9, 2000 at A24; Riccardi, Michael A., Second Lawsuit Challenges Rule 18-B Fee
Schedule, New York Law Journal, February 22, 2000 at 1 and 4; Kleuwer, Susan T.,
Board of Directors Take Action, Nassau Lawyer, Journal of the Nassau County Bar
Association, March, 2000, Vol. 48, No. 2 at 1 & 22; Liotti, Thomas F., 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; Schmoller, Catherine, (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; Asarch, Joel K., President's Column, Are We Doing Enough For
Our Members?, The Nassau Lawyer, April, 2000 at 4; Caher, John, Proposed Budget
Has No Increase For 18-B Fees, New York Law Journal, April 6, 2000 at 1 & 8; Asarch,
Joel K., President's Column, Board United In Seeking Increased 18-B Fees, May, 2000
at 4 & 22 and Collins, Richard D., 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. This entire issue of the Guide is devoted to litigation around the
country on assigned counsel fees. See also, Kessler, Robert E., Widows Fight For Lawyer's
Fee, Say Only Their Counsel Earned It, Newsday, May 18, 2000 at A8 Y A60. See also,
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. An article about the scandalously low wages paid to attorneys
who represent the poor in criminal cases. 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. July 18, 2000, see Memorandum for The Committee for
Modern Courts, New York, New York referring to Mr. Liotti's suit and in support of an increase
in rates. The Committee is composed of citizens concerned with the quality and administration of
justice in New York 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. Judge
Joanna Seybert sustains Mr. Liotti's denial of substantive due process claim. See Peter R. Schlam
and Harvey M. Stone, Article 18-B, Abstention, Hiring and Discrimination, Pleadings,
Eastern District Roundup, an article partially devoted to an analysis of Mr. Liotti's case. 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 8: See, Thomas F. Liotti,
Departing From Federal Sentencing Guidelines, Verdict, the official publication of the
National Coalition of Concerned Legal Professionals, July 1998, Vol. 4, No. 3 at 1, 3, 4, 5, 6, 7,
8, 9, 10, 11, 12 ad 13 and The Attorney of Nassau County, August, 1998 at 14 and 15 and
U.S. v. Booker (04-104) and U.S. v. Fanfan (04-105), 543 U.S. 220, 125 S. Ct. 738 (2005). Mr. Liotti, pro bono publico, filed an amicus curiae brief to contest
the constitutionality of the Federal Sentencing Guidelines.
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