N.Y. Executive Law § 832: Office of indigent legal services

§ 832. Office of indigent legal services. 1. There is hereby created

within the executive department the office of indigent legal services,

hereinafter referred to in this section as the "office". The purpose of

such office is to monitor, study and make efforts to improve the quality

of services provided pursuant to article eighteen-B of the county law.

The office shall report to the indigent legal services board established

pursuant to section eight hundred thirty-three of this article,

provided, however, that administrative matters of general application

within the executive department shall also be applicable to such office.

2. (a) Following the initial appointment of the members of the

indigent legal services board established pursuant to section eight

hundred thirty-three of this article, such board shall promptly nominate

a full-time director of the office and notify the governor of such

nomination. After approval or disapproval of the first nominee as

director of the office, or at any time thereafter when a vacancy shall

exist or is anticipated in the position of director of the office, the

indigent legal services board shall promptly nominate a full-time

director of the office, and notify the governor of such nomination.

Nothing in this paragraph shall prohibit the board from appointing an

interim director if there is a vacancy.

(b) The governor, within thirty days after receiving written notice of

any nomination of a director made pursuant to paragraph (a) of this

subdivision, may approve or disapprove the nomination. If the governor

approves such nomination, or fails to act on such nomination within such

thirty day period, the nominee shall thereupon commence his or her term

as director of the office. If, within such thirty day period, the

governor serves upon the chair of such board a written notice

disapproving such nomination, the nominee shall not be authorized to

serve as director of the office provided, however, that such board may

authorize an interim director appointed pursuant to paragraph (a) of

this subdivision to serve or continue to serve as interim director until

such time as a director of the office is approved, or not timely

disapproved, by the governor. Following any disapproval, the board shall

have sixty days to submit another nominee, although such period may be

extended, upon request of the board, by the governor. A person appointed

as interim director may exercise all of the powers available to the

director of such office.

(c) The director of the office shall serve full-time and for a term of

five years. The director may be removed during this term for good cause

shown, after notice and an opportunity to be heard, by a vote of

two-thirds or more of the nine members of such board. The person serving

as director shall, upon assuming such position, be admitted to practice

law and shall have not less than five years professional experience in

the area of public defense services, and have a demonstrated commitment

to the provision of quality public defense representation and to the

communities served by public defense providers.

(d) The director shall appoint employees and perform such other

functions as are appropriate to ensure the efficient operation of the

office within the amounts available therefor by appropriation.

3. Duties and responsibilities. The office shall, in consultation with

the indigent legal services board established pursuant to section eight

hundred thirty-three of this article, have the following duties and

responsibilities:

(a) to examine, evaluate and monitor services provided in each county

pursuant to article eighteen-B of the county law;

(b) to collect and receive information and data regarding the

provision of services pursuant to article eighteen-B of the county law

including, but not limited to:

(i) the types and combinations of such services being utilized in each

county;

(ii) the salaries and other compensation paid to individual

administrators, attorneys and staff providing such services;

(iii) the actual caseloads of attorneys providing such services

pursuant to article eighteen-B of the county law;

(iv) how the caseloads of attorneys providing such services compare

with the caseloads of attorneys providing prosecution-related services

in each county;

(v) the types, nature and timing of dispositions of cases handled by

attorneys providing such services and attorneys providing

prosecution-related services;

(vi) the actual expenditures currently being made in each county on

such services and prosecution-related services;

(vii) the time, funds and in-kind resources currently being spent on

such services and prosecution-related services and the amount being

spent on ancillary services such as investigators, support staff, social

workers and expert witnesses, including consideration of all funds

received for such services from all sources;

(viii) the criteria and procedures used to determine whether a person

is eligible to receive such services, the number of persons considered

for and applicants denied such services, the reasons for the denials,

and the results of any review of such denials, including the number of

orders issued pursuant to section seven hundred twenty-two-d of the

county law; and

(ix) the standards and criteria used in programs and by each county to

determine whether individual attorneys are qualified to provide indigent

legal services, on a case by case basis;

(c) to analyze and evaluate the collected data, and undertake any

necessary research and studies, in order to consider and recommend

measures to enhance the provision of indigent legal services and to

ensure that recipients of services provided pursuant to article

eighteen-B of the county law are provided with quality representation

from fiscally responsible providers, which shall include but not be

limited to: establishing criteria and procedures to guide courts in

determining whether a person is eligible for such representation;

establishing standards, criteria and a process for qualifying and

re-qualifying attorneys to provide such services pursuant to article

eighteen-B of the county law;

(d) to establish standards and criteria for the provision of such

services in cases involving a conflict of interest and to assist

counties to develop plans consistent with such standards and criteria;

(e) to develop recommendations to improve the delivery of such

services in a manner that is consistent with the needs of the counties,

the efficiency and adequacy of the public defense plan operated in the

counties and the quality of representation offered, which may include

receiving applications for and distributing grants pursuant to specified

criteria;

(f) to develop recommendations regarding the distribution and

expenditure of any monies appropriated for indigent legal services,

including but not limited to monies from the indigent legal services

fund created pursuant to section ninety-eight-b of the state finance

law, for consideration by the indigent legal services board established

pursuant to section eight hundred thirty-three of this article; and, in

making such recommendations, may consider, in addition to measures of

performance, the commitment of local resources to such services and the

changes thereto; the geographic balance of funding among the regions of

the state, population, crime rates, poverty rates and individual

community needs;

(g) to target grants in support of innovative and cost effective

solutions that enhance the provision of quality indigent legal services,

including collaborative efforts serving multiple counties;

(h) to investigate and monitor any other matter related to indigent

legal services that the director deems important;

(i) to request and receive from any department, division, board,

bureau, commission or other agency of the state or any political

subdivision of the state or any public authority such assistance,

information and data, subject to limitations on the disclosure of

information provided confidentially to indigent legal service providers,

as will enable the office to properly carry out its functions, powers

and duties;

(j) to establish measures of performance which programs and counties

shall regularly report to the office, to assist the office in monitoring

the quality of indigent legal services;

(k) to apply for and accept any grant or gift for any of the purposes

of the office or the indigent legal services board. Any monies so

received may be expended by the office to effectuate any such purpose,

subject to the same limitations as to approval of expenditures and audit

as are prescribed for state monies appropriated for such purposes;

(l) to present findings and make recommendations for consideration by

the indigent legal services board established pursuant to section eight

hundred thirty-three of this article; and

(m) to execute decisions of the indigent legal services board

established pursuant to section eight hundred thirty-three of this

article, including the distribution of funds.

4. Additional duties and responsibilities. The office shall, in

consultation with the indigent legal services board established pursuant

to section eight hundred thirty-three of this article, have the

following duties and responsibilities, and any plan developed pursuant

to this subdivision shall be submitted by the office to the director of

the division of budget for review and approval, provided, however that

the director's approval shall be limited solely to the plan's projected

fiscal impact of the required appropriation for the implementation of

such plan and his or her approval shall not be unreasonably withheld:

(a) Counsel at arraignment. * Develop and implement a written plan to

ensure that each criminal defendant who is eligible for publicly funded

legal representation is represented by counsel physically present or

pursuant to the requirements of article one hundred eighty-two of the

criminal procedure law at their arraignment; provided, however, that a

timely arraignment with counsel shall not be delayed pending a

determination of a defendant's eligibility.

* NB Effective until September 1, 2028

* Develop and implement a written plan to ensure that each criminal

defendant who is eligible for publicly funded legal representation is

represented by counsel in person at his or her arraignment; provided,

however, that a timely arraignment with counsel shall not be delayed

pending a determination of a defendant's eligibility.

* NB Effective September 1, 2028

(i) For the purposes of the plan developed pursuant to this

subdivision, the term "arraignment" shall mean the first appearance by a

person charged with a crime before a judge or magistrate, with the

exception of an appearance where no prosecutor appears and no action

occurs other than the adjournment of the criminal process and the

unconditional release of the person charged (in which event

"arraignment" shall mean the person's next appearance before a judge or

magistrate).

(ii) The written plan developed pursuant to this subdivision shall be

completed by December first, two thousand seventeen and shall include

interim steps for each county and the city of New York for achieving

compliance with the plan.

(iii) Each county and the city of New York shall, in consultation with

the office, undertake good faith efforts to implement the plan and such

plan shall be fully implemented and adhered to in each county and the

city of New York by April first, two thousand twenty-three. Pursuant to

section seven hundred twenty-two-e of the county law, the state shall

reimburse each county and the city of New York for any costs incurred as

a result of implementing such plan.

(iv) The office shall, on an ongoing basis, monitor and periodically

report on the implementation of, and compliance with, the plan in each

county and the city of New York.

(b) Caseload relief. Develop and implement a written plan that

establishes numerical caseload/workload standards for each provider of

constitutionally mandated publicly funded representation in criminal

cases for people who are unable to afford counsel.

(i) Such standards shall apply to all providers whether public

defender, legal aid society, assigned counsel program or conflict

defender in each county and the city of New York.

(ii) The written plan developed pursuant to this subdivision shall be

completed by December first, two thousand seventeen and shall include

interim steps for each county and the city of New York for achieving

compliance with the plan. Such plan shall include the number of

attorneys, investigators and other non-attorney staff and the amount of

in-kind resources necessary for each provider of mandated representation

to implement such plan.

(iii) Each county and the city of New York shall, in consultation with

the office, undertake good faith efforts to implement the

caseload/workload standards and such standards shall be fully

implemented and adhered to in each county and the city of New York by

April first, two thousand twenty-three. Pursuant to section seven

hundred twenty-two-e of the county law, the state shall reimburse each

county and the city of New York for any costs incurred as a result of

implementing such plan.

(iv) The office shall, on an ongoing basis, monitor and periodically

report on the implementation of, and compliance with, the plan in each

county and the city of New York.

(c) Initiatives to improve the quality of indigent defense. (i)

Develop and implement a written plan to improve the quality of

constitutionally mandated publicly funded representation in criminal

cases for people who are unable to afford counsel and ensure that

attorneys providing such representation: (A) receive effective

supervision and training; (B) have access to and appropriately utilize

investigators, interpreters and expert witnesses on behalf of clients;

(C) communicate effectively with their clients; (D) have the necessary

qualifications and experience; and (E) in the case of assigned counsel

attorneys, are assigned to cases in accordance with article eighteen-b

of the county law and in a manner that accounts for the attorney's level

of experience and caseload/workload.

(ii) The office shall, on an ongoing basis, monitor and periodically

report on the implementation of, and compliance with, the plan in each

county and the city of New York.

(iii) The written plan developed pursuant to this subdivision shall be

completed by December first, two thousand seventeen and shall include

interim steps for each county and the city of New York for achieving

compliance with the plan.

(iv) Each county and the city of New York shall, in consultation with

the office, undertake good faith efforts to implement the initiatives to

improve the quality of indigent defense and such initiatives shall be

fully implemented and adhered to in each county and the city of New York

by April first, two thousand twenty-three. Pursuant to section seven

hundred twenty-two-e of the county law, the state shall reimburse each

county and the city of New York for any costs incurred as a result of

implementing such plan.

(d) Appropriation of funds. In no event shall a county and a city of

New York be obligated to undertake any steps to implement the written

plans under paragraphs (a), (b) and (c) of this subdivision until funds

have been appropriated by the state for such purpose.