X. FAILURE TO CONSIDER APPROPRIATE FACTORS

Just as many counties base eligibility determinations on irrelevant or inappropriate factors, many likewise fail to consider factors highly relevant to the eligibility assessment. For example, although directly related to the cost of counsel, and therefore a defendant's ability to retain an attorney, few counties report that they take into account the nature and seriousness of the charge or the complexity of the particular case in making eligibility determinations (Appendix at 18-29).

Moreover, the eligibility forms used in at least six counties (Cattaraugus, Livingston, Queens, St. Lawrence, Schenectady and Suffolk) solicit virtually no data concerning the defendant's debts and expenses [23] -- information obviously critical to an accurate assessment of financial status.

Another factor integral to an appropriate eligibility determination, but inadequately addressed in most counties in New York State, is the cost of private representation in the relevant jurisdiction. While a handful of counties report that the cost of private representation is a relevant factor in the eligibility determination, to our knowledge, only Tompkins and Otsego Counties have undertaken a formal study to assess the cost of private representation for a variety of different criminal charges. [24] The cost associated with representing a defendant on a particular charge should be a component of all eligibility inquiries.

24 Four other counties utilize this factor only when a defendant has already been denied appointed counsel and seeks review of that decision. These counties require the defendant to contact three private attorneys within the jurisdiction and determine how much each would charge to represent him. (e.g., Cortland, Dutchess, Sullivan and Wyoming) (Appendix at 62, 65). RETURN to Document