Governor Cuomo
Governor Cuomo ()

ALBANY – Gov. Andrew Cuomo vetoed a bill late Saturday that would have provided for an eventual state takeover of indigent criminal legal defense costs now paid by New York City and counties outside the city.

The localities have come to shoulder most of the burden for the indigent representation in New York state since the Supreme Court’s decree in Gideon v. Wainwright, 372 U.S. 335, that having access to an adequate defense against criminal charges is a constitutional guarantee.

The state currently pays about $80 million toward indigent legal defense and New York City and the 57 counties outside the city about $360 million.

The bill before Cuomo (A10706/S8114) provided for a phased-in, seven-year state takeover of the localities’ costs by 2023.

Cuomo said in his veto message that the measure was too expensive. He contended it could obligate the state to pick more than $800 million each year when fully implemented. He contended that the bulk of those costs would come in Family and Surrogate court representation and in other areas unrelated to the defense of indigent criminal defendants.

Cuomo said the potential enormity of the state’s obligation would undermine the financial stability he has tried to bring to the state since becoming governor in 2011.

“We cannot use Gideon as a ploy for financial redistribution of existing local expenses that have nothing to do with Gideon,” he said in his veto message. “Rather, the bill functions as a simple cost shift to [state] taxpayers, proven by the fact that there is absolutely no funding system to pay for it.”

He noted that his administration’s settlement of a case in the fall of 2014, Hurrell-Harring v. State of New York, 8866-07, established a more limited template of state oversight of the criminal defense systems in the five defendant counties of Suffolk, Washington, Onondaga, Ontario and Schuyler (NYLJ, Oct. 22, 2014).

He said his proposal to extend those provisions to the 57 counties not directly involved in the Hurrell-Harring settlement was rebuffed by the Legislature in negotiations in recent weeks over the state takeover bill.

The bill passed the Senate and the Assembly unanimously in June. It was included in the final batch of the bills that lawmakers sent to the governor’s office near the end of the 2016 calendar year.

Cuomo’s office released his veto message a few hours before the Saturday midnight deadline by which the governor had to either sign or veto the bill.

Nevertheless, Cuomo said he would introduce a plan beginning in early 2017 that would bring “groundbreaking” reforms to the state’s indigent criminal defense system. It would include guarantees of counsel at first appearance for indigent defendants everywhere in the state, improvements in the quality of representation and the imposition impose of caps on the taxpayer-funded attorneys providing defense to indigent suspects.

A diverse coalition of groups urged Cuomo to sign the measure, including the New York State Defenders Association, the New York State Bar Association, the New York City Bar Association, the state Conservative Party, the American Bar Association, the state Catholic Conference, the state Association of Counties, the NAACP, the Lambda Legal Defense Fund, the National Association of Criminal Defense Lawyers and the Innocence Project (NYLJ, Dec. 22).

The state Association of Counties was also a staunch supporter.

“New York state missed a major opportunity to reform the criminal justice system and to provide meaningful property tax relief for homeowners and businesses across New York,” the counties’ group president, William Cherry of Schoharie County, said in a statement Saturday night. “This issue, providing counsel to the poor, is too important of an issue to leave as status quo and we will continue to advocate for improved access to justice and mandate relief for property taxpayers during the 2017 legislative session.”

State Bar President Claire Gutekunst said in a statement that her group was also “disappointed” by Cuomo’s veto of what she called a “thoughtful bill that had widespread support from county governments, the legal community and community organizations.”

People familiar with last-minute negotiations over the bill this week said Cuomo was unwilling to go beyond what his administration has offered the five Hurrell-Harring counties in state aid to bolster their indigent criminal defense systems.

The governor’s office was also said to be taking a hard line in definitions of what constituted an “indigent” defendant in terms of their incomes and poverty-level standards.

Had Cuomo been successful in scaling back the measure, sources said he would have signed the bill with the understanding the Legislature would have amended the new law early next year to reflect the negotiated changes.

Supporters of the bill argued that Gideon places the responsibility for indigent defense on state governments, and that in New York, the state has managed for decades to largely avoid the obligation and unfairly forced New York City and counties to bear the brunt, with the result that many indigent criminal defendants receive inferior representation (NYLJ, March 18, 2013).

William Leahy, the director of the Indigent Legal Services office, said after the bill passed in June that he believes Cuomo “agrees with the aim of the bill and agrees that there should be one statewide standard” for indigent defense. But he said that the officials in Cuomo’s office he has spoken are also wary about the costs of the state takeover (NYLJ, June 21, 2016).

“The concerns are exclusively financial,” Leahy said. “It’s a big bill, a big financial responsibility.”

He said that other states differ on how they meet the Gideon mandate, with about half providing all or nearly all of the funding and the others passing costs on to local governments. He also said that in a similar percentage of states, the state has assumed oversight and standards-setting responsibility for indigent defense services, and about half have other oversight mechanisms.

“One thing that can be said nationally is that there has been a trend, especially over the past decade, to move toward greater and greater state funding and greater and greater state standards-setting and assurances of quality,” Leahy said in June.

The bill was sponsored by state Sen. John DeFrancisco, R-Syracuse, and state Assemblywoman Patricia Fahy, D-Colonie.