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COUNTY COURT OF NEW YORK, MONROE COUNTY 1969.NY.42676 <>; 302 N.Y.S.2d 647; 60 Misc. 2d 144 July 22, 1969 IN THE MATTER OF CHARLES F. CRIMI. THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.DYRUS WILSON, DEFENDANT Charles F. Crimi in person. David O. Boehm, J. Author: Boehm

David O. Boehm, J.

Author: Boehm

On June 21, 1968, Charles F. Crimi, an attorney at law, now maintaining offices at 700 Wilder Building in the City of Rochester, Monroe County, New York, was assigned by order of this court to represent the above-named defendant, an indigent, who had been indicted by the Grand Jury of the County of Monroe, (Indictment No. 284 filed June 14, 1968), charged with the crime of murder in violation of subdivision 1 of section 125.25 of the Penal Law of the State of New York.

 This matter is now before the court with respect to an application by Charles F. Crimi, Esq., to be allowed counsel fees and defense expenses pursuant to section 722-b and section 722-c of the County Law beyond the limits provided therein. Section 722-b provides that compensation to assigned counsel be at the rate of not more than $15 per hour for time expended in court and $10 for time reasonably expended out of court. In addition, such assigned counsel shall receive reimbursement for expenses reasonably incurred. It further limits a total compensation to such assigned counsel where defendant is charged with a felony, of $500. Section 722-b provides; "In extraordinary circumstances the court may provide for compensation in excess of the foregoing limits."

Section 722-c authorizes assigned counsel to obtain investigative, expert or other services on behalf of a defendant, as well as authorizing such services nunc pro tunc. It limits such compensation to $300 except in extraordinary circumstances.

The application for counsel fees and defense expenses is fully supported by a detailed and itemized accounting of the time expended both in court and out of court and by a recital of the defense expenses previously authorized by court order, as well as those for which approval nunc pro tunc is now requested. As to the latter, copies of the court orders authorizing counsel to retain Dr. William Libertson as defense psychiatrist, are attached to the assigned counsel's voucher, together with Dr. Libertson's bill for $900. In addition, there are attached, bills for minutes of a preliminary hearing in the amount of $45 and a photocopy of a check payable to the Monroe County Sheriff's office for $12.40 for serving subpoenas. With respect to counsel's own services, both in court and out of court, his voucher which verifies in itemized form the total time from June 21, 1968 when the matter was originally assigned to him, up until May 6, 1969 when the indictment was ultimately dismissed, shows that he spent 26 hours, 25 minutes in court and 45 hours, 35 minutes out of court. A reading of counsel's affidavit discloses a marked and extraordinary application to his client's cause during that period of time. On the basis of his preparation, research and investigation, he initiated an examination for the purpose of determining the defendant's mental capability in knowingly and intelligently waiving his so-called Miranda rights (Miranda v. Arizona, 384 U.S. 436), when a statement was taken from him while he was in police custody. The Monroe County Health Clinic did not directly respond to this question, but instead found the defendant to be a mental defective requiring commitment to Napanoch in that he was incapable of standing trial. A hearing to controvert these findings was initiated by defendant's counsel. The court is particularly struck by the concern of counsel for his client's welfare in that an automatic commitment of the defendant to Napanoch as an apparent congenital mental defective, with little prospect for recovery and without a prior determination regarding his guilt or innocence, would in all probability have resulted in the lifetime confinement of defendant when the only evidence of guilt was, admittedly, his confession.

However, counsel's "concern for his client" is not the basis for the decision here made regarding the awarding of additional compensation to him. It is presumed that all members of the Bar share a similar concern for their clients' interests with respect to any matter for which they have been retained. Rather, it is the degree of skill and knowledge demonstrated by him, his assiduous effort, unremitting zeal, time and attention unstintingly given by counsel, a single practitioner, and the results accomplished, which merit, in the court's opinion, compensation in excess of the ordinary limits.

The court does not find that more time was expended than the circumstances of the case warranted, nor that the time expended was required because counsel was a novice in the field of criminal law, nor that the litigation was unnecessarily protracted, nor research duplicative, nor that the time expended was excessive for the results accomplished.

The court is mindful of the guidelines proposed by then presiding Justice Botein of the First Department and presiding Justice Beldock of the Second Department in their very learned and informative opinion in People v. Perry (27 A.D.2d 154) wherein excess compensation was disallowed. It appears that they relied very heavily upon 11 Federal District Court decisions, none decided later than 1966, under the Federal Criminal Justice Act of 1964. It appears that the requirements for court allowance of additional compensation are far more legislatively limited (p. 158), by the Criminal Justice Act than the requirements set forth in section 722-b of the County Law where the court is given far wider discretion.

Secondly, if the rule is to be that the "amount of time reasonably and necessarily spent should be the sole criterion in determining whether 'extraordinary circumstances' have been demonstrated" (p. 161), then that requirement has been met here and the court finds that the time spent by counsel in the case at bar was "reasonably" and "necessarily" spent.

If another criterion is to be that in addition a finding of "extraordinary circumstances" can be made "only if the court concludes from the facts that a denial of additional compensation would be grossly unjust" (p. 161), a test that is taken from the Criminal Justice Act and not found in section 722-b, the court makes that finding here, particularly because of the very strong possibility that, but for the experience, expertise and effective advocacy of counsel here, the defendant would in all probability have been incarcerated, before trial, as a mental defective, or, after trial, if the confession had not been suppressed.

Thus it is also plain that the decision regarding compensation is not based entirely upon the type of crime involved nor its seriousness.

Although both applications for an additional allowance were rejected in People v. Perry (supra), it appears that the same was based upon the particular facts rather than a broad and unselective judicial reluctance to allow extra compensation even when the facts warranted it.

In one case, the detailed information regarding the services rendered and the necessity for the time spent was lacking. There was also included in a 34-hour period attributed to the trial, a period of 7 hours during which the jury deliberated. The other six hours claimed to be court time were asserted as having been expended in obtaining six continuances. There were other unexplained and unsubstantiated hours.

In the other application there was a claim, among other things, of 78 hours in preparation of which 15 hours were for regular research, 22 for interviews with witnesses and consultation with prosecuting officials, and 38 reviewing the record ...

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