| Matter of Parry v County of Onondaga |
| 2008 NY Slip Op 04166 [51 AD3d 1385] |
| May 2, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Jeffrey R. Parry, Petitioner, v County of Onondagaet al., Respondents. |
—[*1] Bond, Schoeneck & King, PLLC, Syracuse (Jonathan B. Fellows of counsel), for respondentsCounty of Onondaga, Assigned Counsel Program, Inc. and Onondaga County Bar Association.respondent James C. Tormey, III, as District Administrative Judge for the Fifth Judicial District,having elected not to appear.
Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the SupremeCourt in the Fourth Judicial Department pursuant to CPLR 506 [b] [1]) seeking, among otherthings, to compel respondents to comply with article 18-b of the County Law.
It is hereby ordered that said petition is unanimously dismissed without costs.
Memorandum: Petitioner commenced this original proceeding pursuant to CPLR article 78 inthe nature of prohibition and mandamus seeking, in effect, to compel the courts of respondentCounty of Onondaga (County) to assign counsel to indigent persons and to compel the County topay assigned counsel without reference to the assigned counsel plan implemented by the Countyand administered by respondent Onondaga County Bar Association Assigned Counsel Program,Inc. (ACP), incorrectly sued as Assigned Counsel Program, Inc. The ACP is a not-for-profitcorporation affiliated with respondent Onondaga County Bar Association (Bar Association).With respect both to prohibition and mandamus, there must be, inter alia, "a clear legal right" tothe relief sought (Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988]; seeMatter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]), andthat is not the case here. Thus, the petition must be dismissed. The record establishes that theCounty, through its contract with the ACP, has met its obligation to place in operation a plan forthe provision of assigned counsel to persons charged with crimes or who otherwise are entitled toassigned counsel and who are financially unable to obtain counsel (see County Law§ 722). The ACP sponsored by the Bar Association, "whereby the services of privatecounsel are rotated and coordinated by an administrator," is statutorily authorized (see§ 722 [3]). Such assigned counsel plans are "designed to facilitate and implement thecourt's exercise of its inherent power [to [*2]assign counsel,inasmuch as such plans] serve to provide a constant, ready source of available counsel[,] todefine the amount and source of [assigned counsels'] compensation, and the manner of payment"(Matter of Stream v Beisheim, 34 AD2d 329, 334 [1970]). Furthermore, the ACP'sassigned counsel plan has in fact been approved by the Chief Administrative Judge of New York(see County Law § 722 [3]). Thus, we conclude that, in establishing and operatingthe ACP, respondents are not violating County Law § 722 or otherwise infringing upon thecourt's inherent authority to provide assigned counsel in criminal cases, and that petitioner hasnot established "a clear legal right to the relief sought" (Matter of Platten v Dadd, 38 AD3d 1216, 1217 [2007], lvdenied 9 NY3d 802 [2007]; cf. Matter of Legal Aid Socy. of Orange County vPatsalos, 185 AD2d 926 [1992]).
Finally, the petition also must be dismissed to the extent that it seeks a declaration from thisCourt that the contract between the County and the ACP violates constitutional or statutoryrequirements and is therefore a nullity. Such relief must be sought in a declaratory judgmentaction (see e.g. Levenson vLippman, 4 NY3d 280 [2005]; Matter of Hinman v Mark, 291 AD2d 870[2002]) and, indeed, it appears that such an action has been commenced by petitioner and is nowpending in Supreme Court. Present—Smith, J.P., Lunn, Fahey, Pine and Gorski, JJ.