Reilly v. Berry
| Decision Date | 16 April 1929 |
| Citation | 250 N.Y. 456,166 N.E. 165 |
| Parties | REILLY v. BERRY, City Comptroller. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Petition for mandamus by Edward J. Reilly against Charles W. Berry, as Comptroller of the City of New York. From an order of the Appellate Division [People v. Lee (Reilly v. Berry) 225 App. Div. 698, 231 N. Y. S. 844] modifying, and, as modified, affirming, the order, respondent appeals.
Reversed, and application for mandamus denied.
Appeal from Supreme Court, Appellate Division, Second department.
George P. Nicholson, Corp. Counsel, of New York City (J. Joseph Lilly, Willard S. Allen and George H. Cowie, all of New York City, of counsel), for appellant.
Edward J. Reilly, of Brooklyn, in pro per.
The petitioner was assigned by the court as counsel for the defendant in a prosecution for murder in the first degree. Thereafter a certificate was granted by the judge presiding at the trial for the payment to counsel of compensation for services and expenses. Included in the expenses was an item of $55 paid to detectives who had been employed to investigate the character of a witness for the people, and an item of $50 paid to jewelers who gave testimony as experts concerning the quality of a ring. The comptroller declined to honor the certificate in so far as it called for the payment of these items, upon the ground that to that extent it was in excess of the jurisdiction of the judge who made it. A petition for a mandamus followed. The Supreme Court at Special Term granted the petition as to the first item, but denied it as to the second. The Appellate Division held upon cross-appeals that both items were proper, and as to both granted a mandamus. The comptroller, seeking a construction of the statute, has appealed to this court.
Code of Criminal Procedure, § 308, provides that in a capital cause the court in which the defendant is tried may allow to an assigned counsel ‘his personal and incidental expenses upon a verified statement thereof being filed with the clerk of such court, and also reasonable compensation for his services in such court, not exceeding the sum of one thousand dollars.’ The section was amended in 1918 (Laws 1918, c. 242), by adding a provision that ‘in any case in which experts may be employed as witnesses and in case it shall appear to the satisfaction of the court or a judge thereof that the defendant is not financially able to employ experts, the court to which the indictment is presented or sent or removed for trial or a judge or justice thereof may direct the employment of expert witnesses for the defendant in number not exceeding the number sworn or to be sworn for the prosecution at an expense in the aggregate of not exceeding the sum of five hundred dollars,’ which sum was increased to $1,000 by an amendment of later date (Laws 1924, c. 433).
At common law, service as assigned counsel was given without pay. People ex rel. Karlin v. Culkin, 248 N. Y. 465, 471, 162 N. E. 487. So it still is, except in criminal actions, where the offense charged in the indictment is punishable by death. Code Crim. Proc. § 308. Requital has its origin and measure in the provisions of the statute.
1. Payments to detectives employed to investigate and report as to the character of a witness are not the ‘personal and incidental expenses' of counsel, though paid out of his purse. The scope of the statute may have been uncertain at the outset. Judicial construction has combined with long-continued practice to narrow and define it. The section was first considered by this court in People ex rel. Cantwell v. Coler, 61 App. Div. 598, 70 N. Y. S. 755, affirmed on opinion below, 168 N. Y. 643, 61 N. E. 1132. In that case, decided in 1901, we held that there could be no allowance for the services of expert witnesses whom counsel had employed and paid. The payments, it was said, ‘were undoubtedly expenses of a trial, such as would ordinarily be borne by a party to an action.’ They were not expenses incidental to the distinctive services of counsel. ‘The personal and incidental expenses for the payment of which provision is made are such as relate to those incurred by counsel on his personal account.’ Traveling expenses incurred in attendance at the court, printing charges for the preparation of a brief in accordance with the rules, these are illustrations of disbursements within the purview of the statute. In line with that construction are decisions excluding payments to assistants employed to investigate the facts (Matter of Waldheimer, 84 App. Div. 366, 82 N. Y. S. 916), and payments to...
To continue reading
Request your trial
-
State v. Beecroft, Nos. A09–0390
...defendants will be placed at an “ ‘unfair disadvantage.’ ” Id. at 82 n. 8, 105 S.Ct. 1087 (quoting Reilly v. Berry, 250 N.Y. 456, 166 N.E. 165, 167 (1929) (Cardozo, C.J.)). Imposition of such an unfair disadvantage is all the more troublesome when one considers the penalty that typically ac......
-
Moore v. Kemp
...] if he is unable because of poverty to parry by his own witnesses the thrust of those against him." Reilly v. Berry, 250 N.Y. 456, 461, 166 N.E. 165, 167 (1929) (per Cardozo, C.J.). The Supreme Court has noted that which any experienced trial judge or lawyer could confirm: that " '[t]estim......
-
Tuggle v. Thompson
...disadvantage if he is unable because of poverty to parry by his own witnesses the thrust of those against him." Reilly v. Berry, 250 N.Y. 456, 461, 166 N.E. 165, 167 (1929). Petitioner stresses that the denial of expert assistance in this case, solely because of his poverty, violated his co......
-
Ake v. Oklahoma
...defense requires the assistance of a psychiatrist . . . and no such services are available"). 8 See also Reilly v. Barry, 250 N.Y. 456, 461, 166 N.E. 165, 167 (1929) (Cardozo, C.J.) ("[U]pon the trial of certain issues, such as insanity or forgery, experts are often necessary both for prose......