[*1]
People v Louisseize
2010 NY Slip Op 51091(U) [27 Misc 3d 1237(A)]
Decided on June 9, 2010
Just Ct, Vil. Of Westbury, Nassau County
Liotti, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 9, 2010
Just Ct, Vil. of Westbury, Nassau County


The People of the State of New York, Plaintiff,

against

Stanley Louisseize, Defendant.




09110008



FOR THE VILLAGE:DWIGHT D. KRAEMER, ESQ.

Village Attorney and Prosecutor

Westbury Village Hall

235 Lincoln Place

Westbury, NY 11590

FOR THE DEFENDANT:ANTHONY MASTROIANNI, ESQ.

Pro Bono Publico

355 Post Avenue

Westbury, NY 11590

Thomas F. Liotti, J.



This Court had before it a defendant twice charged and once convicted of driving at high speeds, both at 102 mph in 55 mph zones in violation of New York State's Vehicle and Traffic Laws, thus subjecting him to a possible fine of $450.00 and a surcharge of $85.00; the revocation of his license and fifteen days in the Nassau County Jail. After at first bench warranting in this Court and being returned on that warrant, the defendant, age 18, appeared with his mother who posted $500.00 in bail on his behalf. The defendant was then released on bail but the Court strongly encouraged the defendant to secure counsel before his next court appearance. This Court rejected the plea bargain as proposed by the prosecutor. The defendant indicated that he was unemployed, indigent and could not afford counsel. After that arraignment and before his next court appearance, the defendant was arrested on alleged gang related felony charges. Those charges were pending in Nassau's District and County Courts. The defendant was produced in this court in shackles by the Nassau County Sheriff's Department. He appeared with his mother and still without counsel. He was represented on the felony charges by either Legal Aid or 18-B counsel, but they were not assigned to represent him on the charges before this Court.

Between court dates in this court, I contacted Nassau's Assigned Counsel Defender Plan Administrator to determine whether I could assign 18-B counsel to the defendant. The [*2]Administrator, a distinguished attorney, former prosecutor and a Professor of Law, informed this Court that it (the Court) was not authorized under Article 18-B to assign counsel in a violation case. This then posited with me a serious constitutional question in this Court and a case of first impression statewide. It has wide reaching implications for this Court, but also for all other courts with violation cases before them where the possibility of jail is among the penalties that may be imposed. See Morris, et al., A Practice Guide to Village, Town and District Courts in New York", (Lawyers Cooperative Publishing Company, Rochester, New York (now Thompson West, St. Paul, Minnesota, 1995-Present).[FN1] This Village Justice is a co-author of the aforementioned treatise.

In a previous opinion and order, this Court directed the Attorney General of the State of New York to appear before it and show cause why Article 18-B of the County Law should not be declared unconstitutional. The full opinion and order were published in the New York Law Journal on June 4, 2010. See New York Law Journal, Decisions in the News, People v. Louisseize, New York Law Journal, June 4, 2010 at 46 and Joel Stashenko, A.G.'s Office Declines to Defend Law That Prevents Appointment of Counsel in Serious Traffic Offenses, New York Law Journal, June 4, 2010 at 1 and 5.

Having been placed on notice of this Court's intentions, the Attorney General responded as follows:

Dear Judge Liotti:
I write in response to the Court's order dated May 10, 2010, which directed the Attorney General to show cause why County Law article 18-B should not be declared unconstitutional.
The Attorney General respectfully declines to respond to the order for two independent reasons. First, there is no longer any live case pending before the [*3]Court. The Court's memorandum indicates that the underlying traffic violation was resolved last month by a guilty plea and fine. The parties to the case therefore no longer have a stake in the constitutional question the Court has raised.
Second, the Attorney General was not a party, and could not have been joined as a party, when the case was pending. As the Appellate Division recently explained:

[W]hen the constitutionality of a statute is challenged in an action or proceeding to which the State is not a party, the Attorney General may, upon notification of the challenge, choose to intervene in support of its constitutionality if he or she be so inclined (see CPLR 1012[b][1], [3]; Executive Law § 71). There is no authority, however, for the Supreme Court to compel the Attorney General to intervene, or to join the State as a party in such case.

Matter of Walsh v. Katz, 66 AD3d 1052, 1055-56 (2d Dep't 2009). Moreover, while the Court's order seems to contemplate issuing a declaratory judgment, no plaintiff has sued the Attorney General or the State for a declaratory judgment seeking such a declaration.
The issues raised by the Court are serious ones that deserve careful attention from all branches of government. This Court's memorandum will no doubt contribute to the public discourse on the matter. But this case does not present an appropriate vehicle for a judicial ruling on the constitutionality of article 18-B. Should the question arise again in a proper procedural posture, there will be ample opportunity for the courts to address the matter then.

Sincerely,

Benjamin N. Gutman

Deputy Solicitor General

Unfortunately, while the Attorney General's response may, in some respects, be viewed as a concession that the law is unconstitutional or that my memorandum decision and order may have an affect regarding public policy statewide, it also skirts the issue of the unconstitutionality of the law statewide. It purportedly hangs its hat on procedure which either deprives the Court of deciding the question or limits the impact of the decision to this Village alone. That response does nothing to address the issue. It appears to be, at least in this Court's view, a political cop-out by an Attorney General seeking election as Governor and a State Legislature engulfed in a State budget deficit of over $9 billion - the worst state of affairs in this State's history. While school budgets and other matters may appear to be a higher priority for most of the public and elected representatives, in this Court's opinion, there can be no higher priority than the Bill of Rights and the oath which this Court has taken to uphold it. This Court does not preside over budgetary or legislative matters, it presides over the Constitution and in this case, the Sixth Amendment's provisions regarding the right to counsel are of paramount importance. This Court will not ignore this issue for political or other reasons and respectfully suggests that this State's [*4]and this nation's dire financial condition has, in large measure, been created due to decision making for political purposes rather sound business judgments and sound public policies. This Court does not have the luxury of deferring constitutional questions to another time and place. That buck stops here in this Court and in every other charged with the inherent responsibility of judicial review, an unquestioned obligation bestowed upon us as a constitutional premise and foundation of our form of government since Chief Justice John Marshall decided it more than two hundred years ago in Marbury v. Madison, 5 U.S. 137 (1803). It is not the function of this Court to determine the cost effectiveness of its rulings or what is politically popular. It is the function of this Court to determine the constitutionality of the laws that come before it. In doing so, the Court must look to the words of the Constitution in hac verba, the original intent of our Founders in that regard and prior decisions that have interpreted a particular provision of the Constitution, in this case, the Sixth Amendment of the United States Constitution, which provides:

Amendment 6

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

The legal question then is whether Article 18-B of the County Law is constitutional. More specifically where that law provides for the assignment of counsel to an indigent defendant who is accused of a crime, such as misdemeanors or felonies, it does not allow for the assignment of counsel in the case of violations where there is a possibility of jail and other serious penalties.

While this is a Local Criminal Court, the Village Courts of Nassau County do not preside over misdemeanors or felonies.[FN2] We are not Courts of Record and we do not conduct jury trials. We do not have the benefit of Probation Reports or the power to sentence someone to probation. While all of the Village Justices and Associate Village Justices in Nassau, more than one hundred twenty of us in the sixty two villages here, are attorneys, we are not by law required to be.[FN3] We are part-time jurists, some of us are paid and others are not. Yet, throughout this State non-lawyer Village and Town Justices, approximately fifteen hundred in all, preside over felony arraignments and exams; misdemeanors and violations. If an indigent defendant comes before [*5]these judges and is charged with a crime, then they are eligible for the assignment of counsel, in other words, a free lawyer to represent their best interests. An indigent defendant charged with one or more violations of State or Local Laws where they may be facing fifteen days on each violation, is ineligible for the assignment of counsel.

Article 18-B § 722-a of the County Law provides:

§ 722-a. Definition of crime

For the purpose of this article, the term "crime" shall mean a felony, misdemeanor, or the breach of any law of this state or of any law, local law or ordinance of a political subdivision of this state,[FN4] other than one that defines a "traffic infraction," for which a sentence to a term of imprisonment is authorized upon conviction thereof.

It was created in the aftermath of Gideon v. Wainwright, 372 U.S. 335 (1963), which mandated that any indigent defendant charged with a crime shall be eligible for the assignment of counsel. The Supreme Court of the United States made its ruling binding upon the states under the Fourteenth Amendment.

Clarence Gideon with little more than a pencil and paper, writing from a jail cell in Florida, has shaped the right to counsel in state and federal courts to this day. The venerated holdings in Gideon, supra and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), did more to insure fundamental fairness in the criminal law than the Founders did in enacting the Bill of Rights in the first place.[FN5] Laws can have all the accoutrements of fairness attached to them but they will be of no avail if judges do not have the courage and foresight to review them.[FN6]

Since the holding in Gideon, we have learned that counsel must also be effective. See, Strickland v. Washington, 466 U.S. 668 (1984); Jenkins v. Coombe, 821 F. 2d 158 (1987) and

Lopez v. Scully, 58 F.3d 38 (2d Cir.1995).It is apparent that a system that relies upon pro bono publico defense counsel or one with underpaid lawyers who cannot match the pay and resources [*6]of prosecutors, is inherently dysfunctional.[FN7] A Legislature or Executive Branch of [*7]Government that ignores these realities is dysfunctional in itself. The mandate of Gideon cannot be met unless all courts are able to provide effective legal representation to the poor in any case where there is a mere possibility of jail. See, Alabama v. Shelton, 122 S.Ct. 1764 (2002).

Notwithstanding the holding of Gideon and its progeny, the State's response to it has been lackluster at best, providing inadequate funding for Publico Defenders, Legal Aid attorneys and assigned counsel statewide. In the forty five years since its enactment, Article 18-B has served as little more than a band aid solution to a justice system hemorrhaging with a panoply of endemic, vexing, societal problems which become even more critical in times such as these where the recession, a failing economy, budgetary deficits, wars and environmental disasters compete for funding with the justice system. But again, while many of these issues may have been unforeseen circumstances, unplanned events, emergencies or necessaries, the Constitution is with us each and every day, in good times and bad. It is our highest priority and the corners of it should never be cut. This is truly our greatest legacy as a nation. We are a nation of laws where freedom, liberty and due process are our highest priorities.

Pandering politicians have answered the call for real reforms in the justice system with harsh sentences and more jails. As we have seen in the case of the so-called Rockefeller Drug Laws and the Federal Sentencing Guidelines, their solutions have not been solutions at all to the causes of crime within our society. On the other hand, they have ruined countless lives and burdened taxpayers with insanely high taxes.[FN8] [*8]

In light of the oath which I have taken to uphold, protect and defend the Constitutions of the United States and New York State, I must declare Article 18-B unconstitutional and I therefore do so. Since I am merely a Village Justice from a small Long Island community, my words may not resonate anywhere else. Nonetheless, it is my obligation to write them.

Dated:Westbury, New YorkSO ORDERED:

June 9, 2010

______________________________

Hon. Thomas F. Liotti

Village Justice

Footnotes


Footnote 1: See a book review by Fahringer, Herald Price, A Tour of our Frontline Courts, Village, Town & District Courts in New York, The Mouthpiece (a publication of the New York State Association of Criminal Defense Lawyers), Vol. 11, No. 5, September\October, 1998 at 17 and 18 and book review by Fahringer, Herald Price, New York State Bar Journal, November, 1998 at 56 and 57. See also, Fahringer, Herald Price, The Lawyer's Bookshelf, Village, Town and District Courts in New York, a book review, New York Law Journal, April 27, 1999 at 2. See also, Report to the House of Delegates: Enhancing Public Trust and Confidence in the Legal System, published by the New York State Bar Association's Special Committee on Public Trust and Confidence in the Legal System, October, 2000. References to the book appear at pp. 47 and 48, footnotes 101 and 102. Also, the New York State Bar Association Criminal Justice Section Journal (Winter, 1998) is cited and a book review of our book by Herald Price Fahringer, A Tour of Our Front Line Courts, as it appeared in the Criminal Justice Section Journal, et al. (Criminal Justice Journal, Winter, 1998) at 128. See Ken Strutin, a book review of the 2001 edition, The Public Defense Backup Center Report, published by The Defender Institute, The New York State Defenders Association, Vol XVII, Number 5, September-October, 2002. "This encyclopedic work is well organized and comprehensive. The authors have done a great service by focusing attention on local court law."

Footnote 2: See, People v. Ventura, 3 Misc 3d 1107(A), 787 NYS2d 680 (NY Just. Ct., 2004).

Footnote 3: See William Glaberson, In Tiny Courts of New York, Abuses of Law and Power", New York Times, p. 1, September 25, 2006; William Glaberson, Delivering Small-Town Justice, With a Mix of Trial and Error, New York Times, p. 1, September 26, 2006; William Glaberson, How a Reviled Court System Has Outlasted Many Critics, New York Times, p. 1, September 27, 2006; and William Glaberson, State's Justice Courts to Face Scrutiny by Assembly Panel, New York Times, p. 1, October 14, 2006.

Footnote 4: Village Justices in this County do not assign counsel at all even in violation cases where fines can be as high as ten thousand dollars per violation together with jail terms of 15 days per violation.

Footnote 5: See Thomas F. Liotti, Does Gideon Still Make a Difference? New York City Law Review, Edited by the students of The City University of New York School of Law, a Journal of Law in the Service of Human Needs, Volume Two, Summer, 1998, Number Two, pp. 105-137. See Podgor, Ellen S., Reviews In Review, Gideon in New York, The Champion, a publication of the National Association of Criminal Defense Lawyers, June, 1999 at 48. This is a review of Mr. Liotti's Law Review article by Prof. Podgor of the Georgia State University College of Law.

Footnote 6: See Benjamin N. Cardozo, The Nature of the Judicial Process, 142 (1921), "when the law has left the situation uncovered by any pre-existing rule, there is nothing to do except to have some impartial arbiter declare what fair and reasonable men, mindful of the habits of life of the community, and of the standards of justice and fair dealing prevalent among them, ought in such circumstances to do."

Footnote 7: See, Liotti v. State of New York, County of Nassau, et al., E.D.NY, Docket No. CV 00-2335, Magistrate Michael Orenstein and District Judge Joanna Seybert. See Riccardi, Michael A., Class Action Lawsuit Challenges 18-B Fee Structure, New York Law Journal at 1 and 2. On behalf of himself and all attorneys and counselors at law, Mr. Liotti commenced a lawsuit against the defendants, alleging that Article 18-B of the County Law of the State of New York should be declared unconstitutional because the defendants have not lived up to the mandate of Gideon v. Wainwright. See, New York City News, National Lawyers Guild—N.Y.C. Chapter, February, 2000, Call to Raise Assigned Counsel Rates. Article in part about Mr. Liotti and his lawsuit; Catherine Schmoller, Editor of the Attorney of Nassau County, Assigned Counsel Fees: `You Get What You Pay For,' February, 2000 at 3, 15 & 16; Topping, Robin, A Lawyer's Case For More Pay, Says Court-Appointed Attorneys Underpaid, Newsday, February 9, 2000 at A24; Riccardi, Michael A., Second Lawsuit Challenges Rule 18-B Fee Schedule, New York Law Journal, February 22, 2000 at 1 and 4; Kleuwer, Susan T., Board of Directors Take Action, Nassau Lawyer, Journal of the Nassau County Bar Association, March, 2000, Vol. 48, No. 2 at 1 & 22; Liotti, Thomas F., Letters to the Editor, System Breakdown Seen As Imminent, New York Law Journal, March 13, 2000 at 2; Editorial, Don't Make Paupers of Lawyers Who Help the Poor, Newsday, March 20, 2000 at A 26; Schmoller, Catherine, (2 articles), The Right to Counsel and Suits Seek to Force Fee Hike and Report: Give Assigned Counsel a Raise, The Attorney of Nassau County, March, 2000, Vol 6, No. 19 at 1 and 12; NCBA Lobby for 18-B Fees, Nassau Lawyer, April, 2000 at 3; Asarch, Joel K., President's Column, Are We Doing Enough For Our Members?, The Nassau Lawyer, April, 2000 at 4; Caher, John, Proposed Budget Has No Increase For 18-B Fees, New York Law Journal, April 6, 2000 at 1 & 8; Asarch, Joel K., President's Column, Board United In Seeking Increased 18-B Fees, May, 2000 at 4 & 22 and Collins, Richard D., Update On Assigned Counsel Rates: Part II, May, 2000 At 17, The Nassau Lawyer; Criminal Practice Guide, May 17, 2000, Vol. 1, No. 5, published by Pike & Fischer, Inc., a subsidiary of the Bureau of National Affairs, Inc., a supplement to The BNA Criminal Practice Manual and The Criminal Practice Report, see New York Attorney's Effort to Raise Fees, Obtaining Funding to Pay for Better Indigent Defense Services at 4. This entire issue of the Guide is devoted to litigation around the country on assigned counsel fees. See also, Kessler, Robert E., Widows Fight For Lawyer's Fee, Say Only Their Counsel Earned It, Newsday, May 18, 2000 at A8 Y A60. See also, Zachary R. Dowd, Around The Island, Crime & Courts, Lawyers-For-Poor Plan: An "Illusion of Justice?" Wednesday, June 28, 2000 at A303. Full Amended Verified Complaint and settlement papers reprinted in the New York State Bar Association, Criminal Justice Section Journal, Summer, 2000, Vol. 8, No. 1. Cited at 11, footnote #24 of the New York State Bar Association, Special Committee on Public Trust and Confidence in the Legal System, Report to the House of Delegates: Enhancing Public Trust and Confidence in the Legal System, October, 2000. Peter Sloggat, Task Force To Study Fee Hikes, The Attorney of Nassau County, January, 2001 at 4. See, New York Law Journal, March 26, 2001 at 35, col. 3 for a copy of Decision dismissing the action as to the State and Leigh Jones, State Dismissed As Party In 18-B Suit, March 26, 2001 at LI-2. See also, Thomas F. Liotti, Post Opinion, N.Y.'s Coming Guarantee: An Unfair Trial, Op-Ed article appearing in the New York Post on Wednesday, April 4, 2001 at 31. An article about the scandalously low wages paid to attorneys who represent the poor in criminal cases. See, also, Liotti v. New York State, New York Law Journal, March 26, 2001 at 35, cols. 3, 4, 5 and 6 for a decision by Judge Seybert, granting the motion to dismiss as to the State. July 18, 2000, see Memorandum for The Committee for Modern Courts, New York, New York referring to Mr. Liotti's suit and in support of an increase in rates. The Committee is composed of citizens concerned with the quality and administration of justice in New York State. See Laura Mansneurs, A Brake On The Wheels Of Justice, Shortage Of Lawyers For The Poor Plagues The Courts, The New York Times, January 17, 2001 at B1 and Robin Topping, Law & Order Column, Around The Island, Crime & Courts, Attorneys Protest Low Pay For Indigent Cases, Newsday, January 17, 2001 at A31. See also, Robin Topping, Around The Island, Putting A Price Tag On The Right To Counsel, Newsday, August 21, 2002 at A23. See Andrew Harris, Judge Narrows Suit Challenging Impact of Low 18-B Rates, New York Law Journal, September 29, 2004 at 1 and 2. Judge Joanna Seybert sustains Mr. Liotti's denial of substantive due process claim. See Peter R. Schlam and Harvey M. Stone, Article 18-B, Abstention, Hiring and Discrimination, Pleadings, Eastern District Roundup, an article partially devoted to an analysis of Mr. Liotti's case. The New York Law Journal, October 8, 2004 at 3 & 5; News to Note, Lawsuit Attacking 18B System Survives Motion to Dismiss, The Mouthpiece, November/December, 2004 at 23.

Footnote 8: See, Thomas F. Liotti, Departing From Federal Sentencing Guidelines, Verdict, the official publication of the National Coalition of Concerned Legal Professionals, July 1998, Vol. 4, No. 3 at 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 ad 13 and The Attorney of Nassau County, August, 1998 at 14 and 15 and U.S. v. Booker (04-104) and U.S. v. Fanfan (04-105), 543 U.S. 220, 125 S.Ct. 738 (2005). Mr. Liotti, pro bono publico, filed an amicus curiae brief to contest the constitutionality of the Federal Sentencing Guidelines.