N.Y. County Law § 722: Plan for representation

§ 722. Plan for representation. The governing body of each county and

the governing body of the city in which a county is wholly contained

shall place in operation throughout the county a plan for providing

counsel to persons charged with a crime or who are entitled to counsel

pursuant to section two hundred sixty-two or section eleven hundred

twenty of the family court act, article six-C of the correction law,

section four hundred seven of the surrogate's court procedure act or

article ten of the mental hygiene law, who are financially unable to

obtain counsel. Each plan shall also provide for investigative, expert

and other services necessary for an adequate defense. The plan shall

conform to one of the following:

1. Representation by a public defender appointed pursuant to county

law article eighteen-A.

2. 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. In proceedings under the family

court act, representation by a private legal aid bureau or society, or

by any corporation, voluntary association, or organization permitted to

practice law under the authority of subdivision five of section four

hundred ninety-five of the judiciary law.

3. (a) Representation by counsel furnished pursuant to either or both

of the following: a plan of a bar association in each county or the city

in which a county is wholly contained whereby: (i) the services of

private counsel are rotated and coordinated by an administrator, and

such administrator may be compensated for such service; or (ii) such

representation is provided by an office of conflict defender.

(b) Any plan of a bar association must receive the approval of the

office of indigent legal services before the plan is placed in

operation. In the county of Hamilton, representation pursuant to a plan

of a bar association in accordance with subparagraph (i) of paragraph

(a) of this subdivision may be by counsel furnished by the Fulton county

bar association pursuant to a plan of the Fulton county bar association,

following approval of the office of indigent legal services. When

considering approval of an office of conflict defender pursuant to this

section, the office of indigent legal services shall employ the

guidelines it has heretofore established pursuant to paragraph (d) of

subdivision three of section eight hundred thirty-two of the executive

law.

(c) Any county operating an office of conflict defender, as described

in subparagraph (ii) of paragraph (a) of this subdivision, as of March

thirty-first, two thousand ten may continue to utilize the services

provided by such office provided that the county submits a plan to the

state administrator within one hundred eighty days after the

promulgation of criteria for the provision of conflict defender services

by the office of indigent legal services. The authority to operate such

an office pursuant to this paragraph shall expire when the state

administrator (or, on or after April first, two thousand nineteen, the

office of indigent legal services) approves or disapproves such plan.

Upon approval, the county is authorized to operate such office in

accordance with paragraphs (a) and (b) of this subdivision.

(d) For purposes of this subdivision, any plan of a bar association

approved hereunder pursuant to this subdivision, as provided prior to

April first, two thousand nineteen, shall remain in effect until it is

superseded by a plan approved by the office of indigent legal services

or disapproved by such office.

4. Representation according to a plan containing a combination of any

of the foregoing. Any judge, justice or magistrate in assigning counsel

pursuant to sections 170.10, 180.10, 210.15 and 720.30 of the criminal

procedure law, or in assigning counsel to a defendant when a hearing has

been ordered in a proceeding upon a motion, pursuant to article four

hundred forty of the criminal procedure law, to vacate a judgment or to

set aside a sentence or on a motion for a writ of error coram nobis, or

in assigning counsel pursuant to the provisions of section two hundred

sixty-two of the family court act or section four hundred seven of the

surrogate's court procedure act, or in assigning counsel to a defendant

when a case has been calendared for consideration of resentencing

pursuant to subdivision four of section six hundred one-d of the

correction law or when a court is otherwise called upon to consider

whether a proper term of post-release supervision was imposed as part of

a determinate sentence, shall assign counsel furnished in accordance

with a plan conforming to the requirements of this section; provided,

however, that when the county or the city in which a county is wholly

contained has not placed in operation a plan conforming to that

prescribed in this subdivision or subdivision three of this section and

the judge, justice or magistrate is satisfied that a conflict of

interest prevents the assignment of counsel pursuant to the plan in

operation, or when the county or the city in which a county is wholly

contained has not placed in operation any plan conforming to that

prescribed in this section, the judge, justice or magistrate may assign

any attorney in such county or city and, in such event, such attorney

shall receive compensation and reimbursement from such county or city

which shall be at the same rate as is prescribed in section seven

hundred twenty-two-b of this article. When a case has been calendared

for consideration of resentencing pursuant to subdivision four of

section six hundred one-d of the correction law or when a court is

otherwise called upon to consider whether a proper term of post-release

supervision was imposed as part of a determinate sentence, the attorney

appointed should be the attorney who appeared for the defendant in

connection with the judgment or sentence or, if the defendant is

currently represented concerning his or her conviction or sentence or

with respect to an appeal from his or her conviction or sentence, such

present counsel.

5. In classification proceedings under article six-C of the correction

law or from an appeal thereof, representation shall be according to a

plan described in subdivisions one, two, three or four of this section.

If such plan includes representation by a private legal aid bureau or

society, such private legal aid bureau or society shall have been

designated to give legal assistance and representation to persons

charged with a crime.

Upon an appeal in a criminal action, and on any appeal described in

section eleven hundred twenty of the family court act, article six-C of

the correction law or section four hundred seven of the surrogate's

court procedure act, wherein the party is financially unable to obtain

counsel, the appellate court shall assign counsel furnished in

accordance with the plan, conforming to the requirements of this

section, which is in operation in the county or in the city in which a

county is wholly contained wherein the judgment of conviction,

disposition, or order of the trial court was entered; provided, however,

that when such county or city has not placed in operation a plan

conforming to that prescribed in subdivision three or four of this

section and such appellate court is satisfied that a conflict of

interest prevents the assignment of counsel pursuant to the plan in

operation, or when such county or city has not placed in operation any

plan conforming to that prescribed in this section, such appellate court

may assign any attorney in such county or city and, in such event, such

attorney shall receive compensation and reimbursement from such county

or city which shall be at the same rate as is prescribed in section

seven hundred twenty-two-b of this chapter. Assignment of counsel upon

an appeal in a criminal action pursuant to this subdivision, or pursuant

to paragraph b of subdivision one of section thirty-five of the

judiciary law, includes authorization for representation by appellate

counsel, or an attorney selected at the request of appellate counsel by

the administrator of the plan in operation in the county (or city in

which a county is wholly contained) where the conviction was entered,

with respect to the preparation and proceeding upon a motion, pursuant

to article four hundred forty of the criminal procedure law, to vacate a

judgment or to set aside a sentence or on a motion for a writ of error

coram nobis; compensation and reimbursement for such representation and

expenses shall be governed by sections seven hundred twenty-two-b and

seven hundred twenty-two-c of this article.