The Dutchess County Public Defender’s plan to provide attorneys at certain arraignments in selected courts (see Jan. 9, New York Law Journal article, “Judges Concerned With Role in Criminal Defense Plan“) is not only unworkable, it may invite a flood of legal challenges from the defendants who will continue to be denied counsel at arraignments.

One of the primary purposes of providing an attorney at arraignment is to obtain the necessary information from the defendant to convey to the judge so he or she can make an intelligent decision on bail. The fundamental right to counsel at arraignments has been denied to defendants in New York since before the founding of this country and in most upstate courts, the unfortunate practice continues on a daily basis despite the Court of Appeals ruling in Hurrell-Harring v. State, 15 N.Y.3d 8, 930 N.E.2d 217 (2010).

Not only does this unconstitutional practice deny defendants their Sixth Amendment right to have counsel present at a critical stage of a criminal proceeding, the taxpayers are required to pay for the unnecessary detention of defendants in our overcrowded county jails. It is common practice at late night or weekend arraignments to impose bail on indigent unrepresented defendants who are inevitably sent to the county jails because they cannot afford the bail imposed based upon incomplete information. Worse, they languish in the county jails at taxpayer expense to wait for the next court appearance, which might be weeks away because many town and village courts meet once per month.

If all defendants are represented by counsel at arraignments, as Hurrell-Harring intends, judges can ascertain through counsel, the facts necessary to make an informed decision regarding bail. A judge may understandably feel compelled to impose bail because he or she lacks sufficient information to establish community ties, cannot inquire of the defendant as to his or her version of the facts of the case, or the judge is unable to effectively communicate with the unrepresented defendant who may not speak English or is simply inarticulate due to fear.

While we should applaud initiatives to comply with Hurrell-Harring and provide counsel at arraignments when a crime is charged, the plan proposed by the Dutchess County Public Defender, which provides counsel to some defendants in selected courts is terribly flawed in my opinion. Justice Steinberg is correct in his observations and I would venture further to say that defendants who are detained and not provided counsel at arraignment from the Public Defender will justifiably raise appellate, post-conviction and civil rights challenges later. Why should a defendant in Hyde Park Town Court charged with a petty larceny receive the benefit of a Public Defender at arraignment while a defendant in Rhinebeck Town Court charged with murder, receive no attorney because the Public Defender arbitrarily decides not to cover Rhinebeck arraignments?

Given the decision in Hurrell-Harring, under County Law §722, each judge should first attempt to contact the Public Defender for every arraignment. If the Public Defender is unable or unwilling to send an attorney to represent the defendant, the judge should assign a qualified private (18-B) attorney to handle the arraignment.

Alternatively, if the counties do not wish to pay for 18-B counsel at arraignments, an assistant public defender could attend each arraignment remotely using Skype since most courtrooms now have laptops with built-in cameras and a connection to the Internet. The assistant public defender could confer with the defendant on the telephone and then proceed with the arraignment by video conferencing. Courts across the country have been arraigning defendants using video conferencing technology for years and we could do it in New York to comply with Hurrell-Harring.

Michael S. Pollok
Red Hook