People v. Perry
| Decision Date | 21 February 1967 |
| Citation | 278 N.Y.S.2d 323,27 A.D.2d 154 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Nattie PERRY and Wilbert Watson, Defendants. The PEOPLE of the State of New York, Plaintiff, v. Robert WILLIAMS, Defendant. . Supreme Court, Kings County |
| Court | New York Supreme Court |
BOTEIN, Presiding Justice (Appellate Division, First Department) and BELDOCK, Presiding Justice (Appellate Division, Second Department):
Each of us has received an application in his capacity as Presiding Justice for 'approval, disapproval or modification' of allowance of compensation to counsel assigned to represent indigent defendants in criminal cases. These applications seek allowances in excess of the limits provided for in section 722-b of the County Law because of 'extraordinary circumstances'; and they have been approved by Judges of the trial courts. Since these are the first of such applications submitted for our consideration, it seems advisable that in disposing of them some discussion of the statutory and policy considerations which have affected our ultimate conclusions would be helpful in providing guidelines for courts and counsel in the processing of similar applications in the future.
Section 722-b of article 18--B of the County Law 1 provides for compensation to counsel assigned to defend those unable to retain private representation. Under section 722-b, counsel who are assigned in accordance with a plan of the city's Bar Associations 2 are to be paid at a rate not exceeding $15 per hour for time spent in court and $10 per hour for time reasonably spent out of court. The section further establishes a maximum compensation of $1,500 for the defense of a crime punishable by death ($2,000 if more than one attorney is assigned) $500 for the defense of one or more felonies; and $300 for the defense of one or more other crimes or for representation upon a Coram nobis hearing. However, 'in extraordinary circumstances' the trial court, which fixes compensation, 'may provide for compensation in excess of the foregoing limits.'
The plan of the Bar Associations, drawn pursuant to section 722, amplifies the above language somewhat, by providing for compensation in excess of the limits of section 722-b 'because of extraordinary circumstances, and in order to provide for compensation for protracted representation.' Moreover, the plan (Art. VI, § 3) directs that any such application approved by the trial court must then be forwarded to the Presiding Justice of the appropriate Appellate Division for his 'approval, disapproval or modification'.
Article 18--B of the County Law was prepared by the New York State Department of Law, and, apparently, was enacted without committee hearings or reports. However, the provisions of the statute relating to the compensation of assigned counsel were modeled on the similar provisions contained in the Federal Criminal Justice Act of 1964. 3
Indeed, the CJA sets forth the same per hour rates as does section 722-b, imposes the same maximum compensation limits of $500 for felonies and $300 for misdemeanors, and provides that '(i)n extraordinary circumstances, payment in excess of the limits stated herein may be made if the district court certifies that such payment is necessary to provide fair compensation for protracted representation, and the amount of the excess payment is approved by the chief judge of the circuit.' Thus, although section 722-b and the CJA differ slightly in several minor respects, 4 they are so substantially similar that, for all practical purposes, the language of the CJA regarding compensation of assigned counsel can be considered identical in purpose, meaning and effect with that of section 722-b as amplified by the plan of the Bar Associations.
Since the legislative history of section 722-b is sparse, and there appear to be no State decisions delineating the 'extraordinary circumstances' which must necessarily exist before an attorney may successfully apply for excess compensation, the legislative history of the cognate CJA and the decisions which have thus far been rendered upon applications for extra compensation under its provisions can appropriately be examined.
In providing for payment to counsel assigned to represent indigent defendants, Congress did not intend nor purport to compensate such attorneys to the full extent that attorneys are paid under the accepted criteria for determining the value of their services. In the original version passed by the House of Representatives, no recovery in excess of $500 could ever be allowed. 5 The Conference Report explained that an exception would be made for 'protected' representation in recognition of the many cases of 'extremely long duration.' 6 It was found that the proposed rates were 'conceded by virtually every witness at the hearings to be below normal levels of compensation in legal practice'; nevertheless, the payment schedule was 'widely supported as a reasonable basis upon which lawyers could carry out their profession's responsibility to accept court appointments, without either personal profiteering or undue financial sacrifice.' 7
Parenthetically, it should be noted that the prevailing view of State courts is that, in the absence of statutory provisions, assigned counsel are not entitled to any monetary compensation whatever. 8
Criteria used by Federal courts in intepreting
'extraordinary circumstances'
The Federal judiciary has thus far acted in complete consonance with the purposes of the statute as shown in the foregoing legislative history. For example, the Report of the Committee to Implement the Criminal Justice Act of 1964 concluded: 9
With such a legislative background, the Federal courts have found it appropriate to allow excess compensation only where a case involves 'an extraordinarily lengthy trial, or, by reason of its intricacies or novelty, an extraordinary amount of time out of court So that it would be highly unjust to limit the attorney's compensation to $500.' 10 Likewise, excess recovery will not be approved unless the case can be classified as 'unusually' long in duration. 11
An extra award will not be made merely because the statutory maximum will not 'compensate' an assigned attorney according to the prevailing 'private' rates. Some degree of financial sacrifice is expected of those who undertake the defense of the indigent, and only when the maximum award would be so disproportionate, compared with the services rendered, as to be grossly insufficient will 'extraordinary circumstances' or 'protracted representation' warranting excess compensation be found.
The criteria applicable to the determination of the value of legal services were stated in Matter of Burk, 6 A.D.2d 429, 430, 179 N.Y.S.2d 25, 27, (1st Dept.) as follows: 'The relevant factors are the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issues involved, the professional standing of counsel, and the results achieved.' (See, also, Matter of Potts' Estate, 213 App.Div. 59, 209 N.Y.S. 655.) In the few reported cases under the CJA, only the time reasonably spent in court and in preparation has been considered in the computation of the assigned attorney's fee. The forms provided for under the CJA also indicate that the major (if not the only) concern is with time expended. 12
For the sake of convenience and clarity, the following chart has been prepared to illustrate pertinent information contained in those recent Federal cases where applications have been made for excess compensation:
Hours in Hours in
Case Citation Court Preparation Result
--------------- ----------------- ----------- ----------- -----------------
U. S. v. 256 F.Supp. 859 46 136 1/2 Excess
Kingston
(a)
(W.D.Pa., 1966) compensation
not allowed
U.S. v. Owens 256 F.Supp. 861 40 36 Excess
(W.D.Pa., 1966) compensation
not allowed
U.S. v. Stith 261 F.Supp. 401 37 55 1/2 Excess
(W.D.Pa., 1966) compensation
not allowed
U.S. v. Thomas 261 F.Supp. 431 35 22 1/4 Excess
(D.D.C., 1966) compensation
not allowed
U.S. v. Whitney 1965 Crim.Index 34 1/2 18 Excess
(b)
No. 160 compensation
(S.D.N.Y.) not allowed
U.S. v. Lowery 261 F.Supp. 396 27 44 Excess
(D.D.C., 1966) compensation
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...which then specified the maximum amount of compensation to be paid to assigned counsel in capital cases. See, People v. Perry, 27 A.D.2d 154, 157, fn. 4, 278 N.Y.S.2d 323 (1st and 2nd Depts.1967). In vetoing this bill, the Governor quoted from the Memorandum of the Attorney General, who had......
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...at hand of making service under Section 18-B more attractive to attorneys. It is no longer true as was stated in 1967, People v. Perry, 27 A.D.2d 154, 278 N.Y.S.2d 323 (Sup.Ct.N. Y.Co. and Kings Co. 1967), that $10.00 to $15.00 an hour is the same as the Criminal Justice Act rates, which we......
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