The right to counsel guaranteed to every American citizen accused of a crime is embodied in the Sixth Amendment to the United States Constitution, and made applicable to the states through the Fourteenth Amendment. An integral component of the right to counsel is the right to courtappointed counsel for those unable to hire an attorney. Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25 (1972); Scott v. Illinois, 440 U.S. 367 (1979). The right to appointed counsel is also guaranteed under the New York State Constitution. N.Y. Const. art. I § 6.
New York's parallel statutory authority implementing the constitutional right to appointed counsel likewise emphasizes that it is "financial inability to retain counsel" and not "indigency" which governs the determination of eligibility for courtappointed representation. N.Y. County Law § 722 (McKinney 1991) ("financially unable to obtain counsel"); N.Y. Crim. Proc. Law §§170.10(3), (4), 180.10(3)(c), 210.15(2)(c) (McKinney 1993). This distinction is a critical one, since many people accused of crimes who are not "indigent," are nonetheless without sufficient means to retain private counsel. [7]
Thus, an appropriate eligibility inquiry requires an assessment of the individual's financial ability to obtain counsel. N.Y. County Law § 722 (McKinney 1991). This eligibility determination, which so directly affects access to legal representation, and is therefore of critical constitutional import, is, under current law, a responsibility expressly reserved to the judiciary. See N.Y. County Law § 722 (McKinney 1991); Matter of Stream v. Beisheim, 34 A.D.2d 329, 333 (2d Dept. 1970); People v. Wheat, 80 Misc. 2d 844 (Suffolk County Ct. 1975). The appointment of counsel is made "in the exercise of the trial court's inherent power and in the discharge of its constitutional and statutory duty to furnish counsel to every indigent defendant charged with a crime . . ." Matter of Stream v. Beisheim, 34 A.D.2d at 333 (2d Dept. 1970).
While the ministerial function of financial data collection may at times be delegated to an outside entity, the ultimate obligation to make eligibility determinations rests with the court. Powell v. Alabama, 287 U.S. 45, 72-73 (1932); Matter of Stream v. Beisheim, 34 A.D.2d at 333 (2d Dept. 1970); N.Y. Crim. Proc. Law §§ 170.10 (3)(c), (4)(c); 180.10 (3)(c), (4); 210.15 (2)(c), (3).
The necessity for prompt and accurate judicial determinations of eligibility for appointed counsel cannot be overemphasized. It is beyond dispute that the Sixth and Fourteenth amendment right to counsel generally, and to courtappointed counsel for those unable to retain private counsel, attaches at arraignment. Powell v. Alabama, 287 U.S. at 57 (1932); Kirby v. Illinois, 406 U.S. 682, 688-89 (1972). This means that the defendant has the right to counsel, assigned or retained, during the arraignment as well as at all subsequent proceedings. People v. Witenski, 15 N.Y.2d 392, 396 (1965); People v. Marincic, 2 N.Y.2d 181, 183-84 (1957); See also N.Y. Crim. Proc. Law §§ 170.10 (3); 180.10 (3); 210.15 (2).
Effective representation of the accused, which includes the constitutional right to present a defense, compels the appointment of counsel at the earliest possible stage of the proceedings. Indeed, all professional standards for the provision of defense services recommend that counsel be provided as soon as feasible after custody begins, and in fact contemplate intervention of counsel even before the defendant's first appearance before a judicial officer or the filing of formal charges. ABA Standards for Criminal Justice, Providing Defense Services, 5-6.1 (1990); National Advisory Commission [hereinafter NAC] on Criminal Justice Standards and Goals, Courts 13.1 and Commentary (1973); National Study Commission [hereinafter NSC] on Defense Services, 1.2-1.4 (1976); National Legal Aid and Defender Association [hereinafter NLADA] Standards for Defender Services, II 2b, II 2e (1976); NLADA Standards for the Administration of Assigned Counsel Systems, 2.5 (1989).
From a practical standpoint, the constitutional right to early intervention of counsel would be meaningless if the court was not required, upon the defendant's first appearance before it, to inform the defendant of his right to assignment of counsel and to take affirmative steps to effectuate that right. [8] Moreover, the court's continuing obligation to safeguard these rights is recognized as an integral component of the right to counsel. People v. Witenski, 15 N.Y.2d 392 (1965); People v. Powenski, 29 A.D.2d 629 (4th Dept. 1967).
Consequently, the frequent use by the courts of the term "indigency"
signifies either the erroneous application of an illegally stringent
standard, or use of the term "indigency" to mean "legal"
indigency, that is, inability to afford counsel, as opposed to
pecuniary indigency or complete destitution. (See e.g., Gideon
v. Wainwright, 372 U.S. 335, 340, 344 (1963) (interchangeable
use of "indigent," "unable to employ counsel"
and "too poor to hire a lawyer"); Powell v. Alabama,
287 U.S. 45, 71, 72 (1932) ("indigent" and "unable
to employ counsel" used interchangeably); Matter of Stream
v. Beisheim, 34 A.D.2d 329, 331, 333 (2d Dept. 1970) ("indigent"
and "financially unable to retain counsel" used synonymously);
(People v. Berkowitz, 97 Misc. 2d 277, 279-80 (Sup. Ct.
Kings County 1978); ("indigency" and "financial
inability to pay" used interchangeably).
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8 The New York Legislature, wisely recognizing the critical role
of the judiciary in guaranteeing the right to early entry of assigned
counsel, has provided a statutory mechanism to insure that the
defendant's right to assigned counsel is scrupulously enforced.
N.Y. Crim. Proc. Law § 170.10 (3) provides, in relevant part
that:
The defendant has the right to the aid of counsel at the arraignment
and at every subsequent stage of the action. If he appears upon
such arraignment without counsel, he has the following rights:
(c) [t]o have counsel assigned by the court if he is financially
unable to obtain the same . . . N.Y. Crim. Proc. Law § 170.10(3)(c)
(McKinney 1993) (emphasis supplied).
Subdivision 4 (a) of § 170.10 further mandates that the court
inform the defendant:
Of his rights as prescribed in subdivision three; and the court
must not only accord him opportunity to exercise such rights but
must itself take such affirmative action as is necessary to effectuate
them. N.Y. Crim. Proc. Law § 170.10(4)(a) (McKinney 1993).
The plain meaning of the statute dictates that the court's obligation
to inform the defendant of his right to assigned counsel and to
do whatever is necessary to effectuate that right, arises when
the defendant first appears to be arraigned, and continues until
that judicial responsibility is fulfilled. RETURN to Document