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Hurrell-Harring v. State

July 16, 2009

KIMBERLY HURRELL-HARRING ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, RESPONDENTS,
v.
STATE OF NEW YORK ET AL., APPELLANTS.



The opinion of the court was delivered by: Kavanagh, J.

OPINION AND ORDER

Calendar Date: January 15, 2009

Before: Peters, J.P., Lahtinen, Kavanagh, Stein and McCarthy, JJ.

Appeals (1) from an order of the Supreme Court (Devine, J.), entered August 12, 2008 in Albany County, which denied a motion by defendant State of New York to dismiss the complaint, and (2) from an order of said court, entered August 12, 2008 in Albany County, which denied said defendant's motion to declare the attorney-client privilege waived as to certain of the named plaintiffs, among others.

Plaintiffs commenced this action against defendant State of New York*fn1 seeking a declaration that the State's public defense system is systemically deficient and presents a grave and unacceptable risk that indigent criminal defendants are being or will be denied their constitutional right to meaningful and effective assistance of counsel. Plaintiffs also sought an injunction requiring defendants to provide a system that is consistent with those guarantees. Plaintiffs moved for a preliminary injunction and, thereafter, the State moved to dismiss the complaint claiming, among other things, that the complaint failed to state a cause of action. By order to show cause, the State also moved for a declaration that, for the purposes of the instant litigation, certain plaintiffs have waived their attorney-client privilege as to the matters presented in their respective affidavits in support of their motion for a preliminary injunction. In separate orders, Supreme Court denied the motion to dismiss on the condition that plaintiffs file a second amended complaint adding the counties as defendants and denied the State's motion to deem certain plaintiffs' attorney-client privileges waived. Defendants now appeal from both orders.

The critical issue presented by this appeal is whether plaintiffs -- more than 20 indigent persons who were or currently are being represented by assigned counsel in criminal actions -- have stated a cause of action that is justiciable. Of course, where a motion to dismiss a complaint for failure to state a cause of action is made pursuant to CPLR 3211, "the pleading is to be afforded a liberal construction" (Leon v Martinez, 84 NY2d 83, 87 [1994]), and the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (id. at 87-88; accord Matter of Maron v Silver, 58 AD3d 102, 109 [2008]; see Rubinstein v Salomon, 46 AD3d 536, 538 [2007]; Matter of Niagara Mohawk Power Corp. v State of New York, 300 AD2d 949, 952 [2002]). Even applying such a rigorous standard to the State's motion, plaintiffs have failed to state a cause of action that is justiciable and, therefore, Supreme Court's order denying the motion should be reversed and plaintiffs' complaint should be dismissed.

While plaintiffs in their complaint raise the specter that individual constitutional rights will be routinely violated unless systemic reforms are immediately implemented in the way legal services are provided to indigent criminal defendants in this state, they do not claim -- as the dissent acknowledges -- "that the actual representation they received prejudiced their case." In fact, while this state has provided indigent legal services in one form or another for more than 40 years, plaintiffs do not allege, nor do they identify, any relevant appellate history that supports their claim that indigent criminal defendants have been systemically denied their constitutional right to counsel by the way these services have been delivered.*fn2 The reality is that when plaintiffs' claim is stripped of its constitutional veneer, it is not about indigent criminal defendants being denied their constitutional right to counsel but, instead, it is simply a general complaint as to the quality of legal services offered to indigent criminal defendants in this state. Reduced to its essential terms, plaintiffs' complaint seeks to establish that "deficiencies" exist in the quality of these legal services but, at the same time, fails to show how these "deficiencies" have resulted in a denial of a defendant's right to counsel in their criminal prosecution and how such "deficiencies" had served to affect the outcome of any particular case. In fact, these "deficiencies" have more to do with how these programs are funded and administered than how individuals have been deprived of the meaningful assistance of counsel in defending against criminal charges pending against them. In our view, any decisions to address those "deficiencies" should be made by the executive and legislative branches of government, and not by the Judiciary.

Initially, we note that plaintiffs' claim is based on a fundamental misunderstanding of the constitutional dimensions of a defendant's right to counsel in a criminal action. The Sixth Amendment to the US Constitution insures, among other things, that each person charged with the commission of a crime has the right to a speedy and public trial, an impartial jury and the "Assistance of Counsel for his [or her] defence." As interpreted under both the US and NY Constitutions, this guarantee has been found to be synonymous with the right to the effective assistance of counsel (see Custis v United States, 511 US 485, 507 [1994]; Strickland v Washington, 466 US 668, 686 [1984]; Schulz v Marshall, 528 F Supp 2d 77, 91 [ED NY 2007]), and is violated not whenever there is a flaw or "deficiency" in the quality of the legal representation provided indigent criminal defendants, but when that representation, taken as a whole, is so inadequate as to "undermine[] the proper functioning of the adversarial process [so] that the trial cannot be relied on as having produced a just result" (Strickland v Washington, 466 US at 686; see Washington v Hofbauer, 228 F3d 689, 702 [6th Cir 2000]; accord Girts v Yanai, 501 F3d 743, 756-757 [6th Cir 2007], cert denied ___ US ___, 129 S Ct 92 [2008]). While the tests employed under both federal and state law to measure the effectiveness of counsel are to some extent different, neither recognizes the right for its own sake but, rather, for the effect it has in insuring that a defendant charged with a crime has been treated fairly and the criminal action has produced a fair result (see People v Schulz, 4 NY3d 521, 530-531 [2005]; People v Henry, 95 NY2d 563, 566 [2000]; People v Benevento, 91 NY2d 708, 711 [1998]; People v Powers, 262 AD2d 713, 716 [1999], lv denied 93 NY2d 1005 [1999]). It is not, as plaintiffs allege, a general right that can be asserted in a civil action to support a claim that seeks to compel other branches of government to allocate additional public resources and intensify administrative oversight of programs that provide indigent criminal defendants with legal assistance in their criminal prosecutions.

How these programs are funded and administered does not necessarily implicate the constitutional right to counsel and, as such, the claims made in this action on behalf of these plaintiffs are not justiciable. Justiciability involves the constitutional separation of powers and determines what matters should be resolved by the Judiciary, as opposed to the executive or legislative branches of governments (see Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 238-239 [1984]; see also Jiggetts v Grinker, 75 NY2d 411, 415-416 [1990]). With that principle in mind, it must be remembered that complex choices that entail selecting among competing priorities and allocating finite resources are matters best left to the sound exercise of the discretion of the coordinate branches of government and are not the type that the Judiciary, to be frank, is designed or well suited to make (see Jiggetts v Grinker, 75 NY2d at 415-416; see also Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d at 239; Jones v Beame, 45 NY2d 402, 407 [1978]; New York Civ. Liberties Union v State of New York, 3 AD3d 811, 814 [2004], affd 4 NY3d 175 [2005]). Yet, it is precisely those types of choices that plaintiffs seek to have the Judiciary render in this action.

The true nature of the relief plaintiffs seek is spelled out in their motion for a preliminary injunction.*fn3 Specifically, they asked that an order be issued that directs the State to:

"1. Implement standards and procedures to ensure that attorneys appointed to represent indigent criminal defendants have sufficient qualifications and training;

2. Establish caseload and workload limits to ensure that public defense attorneys have adequate time to devote to each client's case;

3. Guarantee that every eligible indigent criminal defendant is assigned a public defense attorney within 24 hours of arrest who is present at every critical proceeding and consults with each client in advance of any critical proceeding to ensure that the attorney is sufficiently prepared for any such proceeding;

4. Ensure that investigators and experts are available to every public defense attorney for every case in which an attorney deems that investigative or expert ...


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