Chief Administrative Judge Marks
Chief Administrative Judge Marks (NYLJ/Rick Kopstein)

The governor recently signed into law a measure, introduced at the request of the Unified Court System, allowing New York to establish centralized, off-hours arraignments of criminal defendants in counties outside of New York City.1 The law will go into effect later next month. This legislation is the culmination of years of effort to address logistical challenges encountered in delivering to indigent defendants meaningful and effective assistance of counsel, particularly at their first appearance before a judge.

The origins of this statute relate back to the 1963 U.S. Supreme Court decision of Gideon v. Wainwright. In Gideon, the court ruled that an indigent criminal defendant in a state court has a constitutional right to appointed counsel.2 To comply with Gideon, New York enacted County Law Article 18-B, and placed the responsibility of delivering mandated legal services to indigent defendants on county governments. Over 40 years later, the court system’s Commission on the Future of Indigent Defense Services issued a report concluding that indigent defense providers in our state (paid for by limited county funds) toil under excessive caseloads, lack access to adequate training, and lack support to conduct thorough investigations.3 The commission determined that the uneven distribution of resources among public defenders from county to county yielded inconsistent access to justice for indigent criminal defendants and, at times, resulted in the deprivation of their constitutional and statutory rights.

The commission’s 2006 report was a prominent catalyst for the filing of a class action lawsuit, Hurrell-Harring v. State of New York, which claimed that New York’s failure to adequately fund indigent defense deprived defendants of their constitutional right to meaningful and effective assistance of counsel in five named counties.4 In 2014, on the eve of trial, the parties reached a settlement that affirmed the bedrock principal of Gideon—that every poor defendant in a criminal case has the right to be represented by a competent lawyer, including at the first court appearance, where bail often is set and pleas may be taken.5

However, providing counsel at first appearance is especially challenging in our state’s Town and Village Justice Courts. There are nearly 1,300 local courts in 925 towns and 352 villages throughout New York. These tribunals have existed since the early 17th century, predating New York’s Constitution.6 Nearly 2,200 town and village magistrates, of whom nearly three-quarters are non-attorneys, handle two million civil and criminal cases in their courts every year. Unlike other courts in the Unified Court System, the Justice Courts are funded by the sponsoring localities rather than the state, yet they remain a vital part of our Unified Court System, handling the prosecution of misdemeanors and violations as well as arraignments and preliminary hearings in felony matters that occur within a town’s or village’s borders.

In rural counties or those with a large number of town and village courts, defense attorneys must often travel long distances to make court appearances and to meet with their clients. The burden on county government to provide indigent criminal defendants with competent counsel is especially challenging when a defendant is arrested at night or on a weekend. In most communities, there are no local lockup facilities or personnel to secure a defendant in custody. As a result, state and local law enforcement agencies must seek out the magistrate of the local Justice Court to open the courthouse and arraign the accused so that a securing order can be issued either setting bail—thus authorizing law enforcement to place the accused in a county jail—or releasing the accused on recognizance. Under this system, indigent defenders must be on call at all hours to cover arraignments in numerous courts often separated by significant distances. Defenders often find it impossible to cover every court, as one county alone may have dozens of Justice Courts miles from the nearest defense attorney. Thus, far too many defendants are compelled to proceed without an attorney and are arraigned without the assistance of counsel, with the state failing to make good on the promise of Gideon.

I am pleased to report that the three branches of state government are working together to change this condition. In his State of the State message, Gov. Andrew Cuomo declared the state’s intention to extend the Hurrell-Harring settlement to all of the state’s counties, and to guarantee that indigent defendants have counsel at arraignment. If approved by the Legislature, this will help to relieve the financial burden on localities and ensure that adequate staffing of indigent defense institutions is available for arraignment proceedings.

Moreover, the new legislation, which received the support of the New York State Magistrates Association, is designed to alleviate some of the significant practical problems localities face when trying to ensure all defendants in our state’s Justice Courts have access to counsel at arraignment. The law sets up a framework allowing localities to develop individual plans to establish centralized, off-hours arraignment parts. Instead of requiring all local magistrates and public defenders to be on call on weekends and during the evening, the statute enables the designation of a centralized arraignment part (or parts) in each county during off-hours. Under prior law, with limited exceptions, magistrates were only authorized to arraign defendants in their jurisdiction. The new statute expands the jurisdiction of a judge or magistrate presiding in a centralized arraignment part and permits arraignment of any person charged with committing an offense anywhere within that county or who is returned on a warrant in the county.

The authority to approve a plan and establish a centralized arraignment part rests with the Chief Administrative Judge, after consultation with the Office of Indigent Legal Services, magistrates associations, the defense bar, local governments, district attorney offices, and other stakeholders.

The centralized arraignment parts will be at predictable, published locations, and Justice Court magistrates will participate in a rotation schedule to staff the centralized arraignment parts within their counties. Since the arraignment of defendants during off-hours will now occur at only one or two courthouses instead of dozens of potential courthouses throughout a county, it will be feasible for public defenders (and prosecutors) to staff these parts and provide counsel for indigent defendants at arraignment.

In developing plans for individual counties, the court system is currently holding meetings with stakeholders to discuss issues and challenges relating to the creation of the centralized arraignment parts. There is no expectation of a one-size-fits-all solution, as each county may have unique issues requiring different solutions for a successful program. Flexibility is the hallmark of the legislation. The location of the arraignment parts may be either static or rotational, depending on the courthouse facilities and geographic realities of each county. While some localities have expressed concerns about the costs associated with setting up centralized arraignment parts, such as additional pay for attorneys, interpreters, and magistrates, this new approach will ultimately save money, resources, and time for the stakeholders involved.

In the wake of Hurrell-Harring, it became evident that new procedures were needed for off-hours arraignments to protect the constitutional rights of indigent defendants. With guidance from the Administrative Board of the Courts, I look forward to reviewing and approving the plans for centralized arraignment parts in the coming weeks and months. Implementation of these plans throughout the state will be a major step forward in bringing New York into compliance with the mandate and spirit of Gideon v. Wainwright.


1. L. 2016, c. 492.

2. 372 U.S. 335, 343 (1963).

3. Commission on the Future of Indigent Defense Services, “Final Report to the Chief Judge of the State of New York” (June 2006), 17.

4. The five counties named as defendants in the suit are Onondaga, Ontario, Schuyler, Suffolk, and Washington.

5. The Supreme Court has also affirmed that “the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty.” Rothgery v. Gillespie County, 554 U.S. 191, 194 (2008), citing Brewer v. Williams, 430 U.S. 387, 398-99 (1977).

6. Unified Court System, “Action Plan for the Justice Courts” (November 2006), 12.