This appeal presents the question of whether the City of New York's 2010 plan for indigent defense, permitting representation by both institutional providers and private attorneys in cases in which a conflict of interest precludes representation by the initial provider, constitutes a valid combination plan within the meaning of article 18-B of the County Law (County Law §
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In New York, the statute that affords indigent defendants a private attorney where a conflict exists is: a) Executive Law § 190.50 . b) Criminal Procedure Law § 30.30 . c) County Law § 18(b) d) Penal Law § 155.25
Ciparick, J. This appeal presents the question of whether the City of New York's 2010 plan for indigent defense, permitting representation by both institutional providers and private attorneys in cases in which a conflict of interest precludes representation by the initial provider, constitutes a valid combination plan within the meaning of article 18-B of the County Law (County Law § …
Dec 15, 2009 · The state guarantees indigent civil representation in a variety of areas, mainly in family law, guardianship and certain unemployment insurance cases. Family law representations State law affords paid counsel for indigent litigants in certain proceedings where children are at risk or custody is at stake: Parental rights.
NEW YORK STATE OFFICE OF INDIGENT LEGAL SERVICES APPELLATE STANDARDS AND BEST PRACTICES PREAMBLE The Office of Indigent Legal Services (ILS), in consultation with its Board, promulgates these standards under the authority conferred by Executive Law § 832. The Standards for Appellate
On March 18, 1963, the U.S. Supreme Court issued its decision in Gideon v. Wainwright, unanimously holding that defendants facing serious criminal charges have a right to counsel at state expense if they cannot afford one.Oct 24, 2018
The Supreme Court held in Strickland v. Washington that the proper standard for constitutional assistance of counsel is that attorney performance must be objectively reasonable given the totality of circumstances.
The Sixth Amendment guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you.
At trial, Gideon, who could not afford a lawyer himself, requested that an attorney be appointed to represent him. ... The Supreme Court, in a unanimous decision written by Justice Hugo Black, ruled that Gideon's conviction was unconstitutional because Gideon was denied a defense lawyer at trial.
Gideon v. WainwrightThe Sixth Amendment gives defendants the right to counsel in federal prosecutions. However, the right to counsel was not applied to state prosecutions for felony offenses until 1963 in Gideon v. Wainwright, 372 U.S. 335.
Two procedures test the government's case against defendants prior to trial: (a.) the grand jury review and the preliminary hearing.
The Seventh Amendment (Amendment VII) to the United States Constitution is part of the Bill of Rights. This amendment codifies the right to a jury trial in certain civil cases and inhibits courts from overturning a jury's findings of fact.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Seventh Amendment Annotated. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
1963Wainwright. Gideon v. Wainwright, case in which the U.S. Supreme Court on March 18, 1963, ruled (9–0) that states are required to provide legal counsel to indigent defendants charged with a felony.
In 1963, the Supreme Court ruled unanimously in favor of Gideon, guaranteeing the right to legal counsel for criminal defendants in federal and state courts. Following the decision, Gideon was given another trial with an appointed lawyer and was acquitted of the charges.
The case that established that defendants have a right to represent themselves was Faretta v. California, U.S. Sup. Ct. 1975. The Faretta case said that a judge must allow self-representation if a defendant is competent to understand and participate in the court proceedings.
The minimal standards for measuring the effectiveness of a state’s criminal defense system are contained in the guidelines of the American Bar Association (ABA) and the National Legal Aid and Defender Association (NLADA). The ABA guidelines define the qualities of a good statewide system; the NLADA guidelines list the standards which the courts and the lawyers in the system should meet.
The National Legal Aid and Defender Association (NLADA), the country’s leading association for equal-justice lawyers and professionals — i.e., providers and supporters of legal assistance to poor and low-income individuals — has focused its guidelines more on the quality of counsel’s representation than on the system for providing counsel. Under the NLADA Performance Guidelines, counsel is expected or required to:
State law affords paid counsel for indigent litigants in certain proceedings where children are at risk or custody is at stake: Parental rights. Respondents and children in cases terminating parental rights are entitled to counsel.
Child visitation. Non-custodial parents and grandparents have a right to counsel in seeking visitation of a child in foster care and in cases where a government social services agency is assuming custody of a child.8. Domestic violence.
While the constitutional right to counsel in criminal cases does not apply in most civil cases, some states and localities have created limited rights to counsel in high-stakes civil cases (e.g. evictions, foreclosures, unemployment benefits, child custody, etc.). This paper assesses progress in New York and other states in this area, ...
Institutional defense offices must hire on the basis of merit and have in place an evaluation system to ensure that attorneys are providing competent, high quality, representation to their clients. Assigned Counsel Plans shall create a system of re-evaluation of panel members. Service on a panel is a privilege not a right, and there shall be no preference for retaining current panel members over new applicants.
This is obviously the case where the opposition’s brief contains misstatements or raises new issues or where a new relevant appellate decision has been rendered. Further, reply briefs may point out weaknesses in the opposing counsel’s arguments, sharpen the issues for oral argument, and reveal the strength of the appeal.
The complexity of New York’s sentencing laws imposes a special duty on appellate counsel to carefully review the legality of a client’s sentence. For predicate felons, such review necessarily entails determining whether the subject prior felony sentence was legal and whether a prior out- of-state conviction qualified as a predicate felony in New York. For example, counsel’s review may reveal that a client was wrongly sentenced as a second felony offender based on a crime not set forth in the Penal Law. See e.g. People v Cammarata, 216 AD2d 965 (4th Dept 1995). The client may have received a determinate sentence rather than a mandatory indeterminate sentence. See e.g. People vMcKay, 10 AD3d 734 (2d Dept 2004). Counsel must raise such issues on direct appeal, or when that is not possible, must pursue relief via a CPL 440.20 motion. See StandardXX. Collateral Litigation: CPL Article 440 Motions. In addition, counsel has a duty to ensure that the sentence has been correctly calculated by correctional personnel and that jail time has been properly credited. In this regard, see Matter o f Guido v Goord, 1 NY3d 345 (2004) (inmates do not secure jail time credit for out-of-state or federal detention unless certified record of detention is provided). Finally, a person confined pursuant to a civil commitment of the FamilyCourt for a fixed period of time may receive jail time credit. See Correction Law §804-a (1); Matter o f Cunha v. Urias, 112 A.D.3d 923 (2d Dept 2014) (discretionary reduction of the term of a civil commitment is available where the sentence is for a fixed period of time and the release is not conditional upon performance of an act.)
In family law cases, counsel must advise clients about the impact of subsequent and collateral proceedings on the judgment being appealed. Counsel should caution clients that an order entered on consent is not appealable and modifies any earlier order.
To establish a relationship of trust and confidence, counsel must meet with the client. If the client is incarcerated, the meeting should occur in the jail or prison, unless such a meeting would not be in the client’s best interest. If the client is not incarcerated, a meeting may occur at counsel’s office. If that is not feasible or if a visit at another site might yield more relevant information, counsel should make appropriate arrangements. Once a relationship has been established, counsel may communicate by phone, but should be mindful that such conversations with incarcerated clients typically are not secure. Further, counsel should consider the security of phone calls to clients who live with co-defendants or co-respondents or anyone who might use information about the client in a harmful way.
When reviewing the issues to be raised on direct appeal in criminal cases, counsel must determine the legality of the sentence imposed. Counsel should also determine whether a client’s sentence has been properly calculated by jail or prison officials and take steps to correct errors that operate to the client’s disadvantage.
Institutional defenders and assigned counsel should retain the file under as secure conditions as reasonably feasible throughout the client’s life, unless directed otherwise. Counsel should promptly furnish a client’s file to successor counsel. However, counsel may not disclose confidential information to successor counsel unless the client gives permission.