Jared King is charged by Uniform Traffic Ticket with a violation of Vehicle and Traffic Law Section 511 (1)(A), Aggravated Unlicensed Operation in the Third Degree, a Class A misdemeanor, and a violation of Vehicle and Traffic Law 509 (1), Unlicensed Operator, both alleged violations occurring on September 25, 2013 in the Town of Bethlehem, County of Albany, State of New York.

Mr. King appeared in court for arraignment on October 15, 2013 and, at such time, the Albany County Public Defender's Office was appointed to represent him, for purposes of arraignment, subject to a determination of Mr. King's eligibility to be further represented by the Public Defender's Office.

At the next court appearance, on November 19, 2013, Assistant Public Defender Louis Neri stated that the defendant presented himself to the Albany County Public Defender's Office for a determination of his eligibility, which included their assessment of a financial statement he provided. Mr. Neri advised the court that Mr. King did not qualify for their services, in large part because of his ownership of certain assets, comprised of bank accounts and securities.

Mr. King acknowledged in court owning such liquid assets. However, he asserted that he believed that he nonetheless qualified for representation by the Public Defender's Office because he is being represented by that office in a similar charge currently pending in Albany City Court, and/or for reasons relating to the concept of indigence. He stated that he is self employed as a day trader of securities, but does not realize any profit from that job. [*2]

An issue thus arose as to Mr. King's eligibility for representation by the Public Defender's Office, despite the Public Defender's Office's denial. The court indicated that it would be necessary to review the matter and adjourned the proceedings until December 17, 2013, with the court issuing a decision before then.

In the interim, on November 26, 2013, Mr. King was again arrested and was charged with Aggravated Unlicensed Operation, Third Degree, a Class A misdemeanor, and Unlicensed Operator. At his arraignment, the court advised Mr. King, and he agreed, that the determination of whether he was eligible for the Public Defender on the new charges would be included in this court's decision. (Any opportunity for Mr. King to challenge that decision, if unfavorable to him, was preserved). The underlying issue of these new charges were identical to the older charges, and related to the propriety of a suspension of Mr. King's driving licence; the only difference between the two sets of charges were the dates on which Mr. King allegedly was driving.

The issues before this court are: who makes the determination of a defendant's eligibility to be represented by the Public Defender's Office, and, what is the standard to be used in making that determination ?

It is the court (and not the Public Defender's Office) that is responsible for ultimately making that determination, and the standard for eligibility is "financial ability to pay" (and not "indigence). Under these standards, the court must conclude that Mr. King does have the financial ability to pay for counsel and accordingly the Public Defender's Office is relieved from its representation of Mr. King.

A comprehensive review of "Determining Eligibility for Appointed Counsel in New York State" was prepared by the New York State Defender's Association in 1994 pursuant to its contract with the State of New York "to review, assess and analyze the state's public defense system and to make recommendations for improvements to the Governor, the Legislature, the Judiciary and other appropriate instrumentalities."

The report stated that: "proper and reliable determination of eligibility for assigned counsel ensure that the relatively scant public resources currently devoted to the public defense services are expended appropriately."

The report makes clear that it is a defendant's "financial inability to retain counsel and not indigency' which governs the determination of eligibility for court-appointed representation", citing, NY County Law § 722 ("financially unable to obtain counsel"), [*3]Crim. Proc. Law §§ 170.10(3), (4), 180.10(3)(c), 210.15(2)(c).

Thus, the report continues, "an appropriate eligibility inquiry requires an assessment of the individual's financial ability to obtain counsel...this eligibility determination...is, under current law, a responsibility expressly reserved to the judiciary, citing, NY County Law § 722, Matter of Stream v. Beisheim, 34 AD2d 329 (2d Dept. 1970), People v. Wheat, 80 Misc 2d 844 (Suffolk County Ct. 1975).

"While the ministerial function of financial data collection may at times be delegated to an outside entity, the ultimate obligation to make eligibility determinations rests with the court" (citations omitted).

The report also notes that there are no uniform guidelines for assessing eligibility for appointed counsel on a statewide basis. Such determination must be made on a case-by-case basis, and cannot be premised solely on any single factor. The professional standards that are used call for assessment of each case on its individual merits, with substantial consideration given to the assets and debts of the defendant, the seriousness of the charge, the complexity of the case, and the cost of privately retained counsel in the jurisdiction where the representation will occur.

The "bottom line" is that "the eligibility determination must be premised on an assessment of whether or not the accused is financially unable to afford counsel, not on whether he is indigent'".

As indicated above, a substantial factor is a defendant's assets. Only available liquid assets should be considered, and non-liquid assets, such as a home used as a primary residence, or an automobile necessary to sustain employment, and reasonable household furnishings should be excluded from the net asset inquiry. This is particularly relevant in this case because the defendant's assets are liquid.

Other factors to be considered are : severity of the charges; complexity of the case; cost of private representation in the particular jurisdiction.

In People v. Mion, 2011 NY Slip Opinion 50492 (U), Westchester City Court 2011, the court similarly concluded that the standard for the appointment of counsel is whether or not one is "financially unable to obtain counsel", and also noting that there is no statutory definition of same, nor any instructive case law as to its meaning. Accordingly, a court is "required to balance the defendant's constitutional right to effective assistance of counsel and the burden to the public fisc of paying for counsel for those financially able to obtain counsel." [*4]

It directed that a court needs to examine a defendant's complete financial picture, including income, expenses, assets, liabilities and obligations.

The court also noted the importance of County Law 722(b) in this determination, which provides: "whenever it appears that the defendant is financially able to obtain counsel or to make partial payment for the representation or other services, counsel may report this fact to the court and the court may terminate the assignment of counsel or authorize payment, as the interest of justice may dictate, to the public defender, private legal aid bureau or society, private attorney or otherwise." Thus, the court's authority to terminate assignment of counsel is established by statute, and may occur when a defendant is or becomes "financially able to retain counsel" or to make some payment.

In summary, the ultimate decision maker of an individual's eligibility for public defense is the court, and the standard is the individual's "ability to pay" based on a comprehensive review of that person's circumstances.

Based upon this standard, the court has examined Mr. King's financial statement. In order to maintain the confidentiality of Mr. King, the particulars of his finances are not being included in this Decision; the financial statement itself will be maintained in the court file, and is herein being ordered to be SEALED from public review. Mr. King, of course, is aware of its content, as he was its author.

Based upon Mr. King's finances, as well as the other circumstances of the case, this court concludes that Mr. King does have the ability to pay for private counsel. Mr. King reports that he is employed as a day trader of securities, but derives no income from such. The amount of liquid assets reported by Mr. King, however, does sustain an ability to pay for counsel. His expenses are not such as to undermine this ability. In addition, the nature of the charges against Mr. King do not appear to be particularly complex, and the cost of private representation to defend Mr. King on these charges would not significantly dissipate Mr. King's assets. Given the "relatively scant public resources currently devoted to the public defense services" and the need to assure that such resources are "expended appropriately", supra, further yields the conclusion that an individual with the amount of liquid assets owned by Mr. King does have the ability to retain private counsel.

The fact that Mr. King now has two sets of charges in this court does not alter the equation, as both sets of charges involve essentially the same issues and the same facts (other than the dates that the driving allegedly occurred). And the fact that Mr. King is represented by the Albany County Public Defender upon similar charges in the City of Albany is not a factor that this court can consider.

Accordingly, with respect to the charges pending against Mr. King in the Bethlehem [*5]Town Court, the Albany County Public Defender is relieved of Mr. King's representation. Mr. King will appear in court on December 17, 2013, at which time he can be represented by private counsel, or choose to represent himself, after the court conducts an inquiry as to his ability to do so. If Mr. King wishes to adjourn his next appearance until January 21, 2014 to have additional time to retain counsel, the court would grant such a request.

This shall constitute the Decision and Order of the Court.

__________________________________

Michael Katzer

Bethlehem Town Court Judge

Dated: November 27, 2013