Who is Entitled to a Court Assigned Attorney?
New York State Law requires assigned counsel in certain types of cases if an individual is financially unable to afford a private attorney. The right to assigned counsel is present in criminal and some civil matters. The individual counties determine the specifics of the right to assigned counsel.
Judiciary Law of New York, Article 2 § 35, states that an individual has the right to assigned counsel in some types of cases if he or she cannot afford one. The law provides for the assignment of counsel in criminal matters. Family Court cases also can be assigned counsel if the matter involves juvenile delinquency, family offenses (an order of protection), child abuse and neglect, termination or limitation of parental rights (including limitations to custody or visitation rights), and for the Respondent in a paternity case. In 2006, §35 of the Judiciary Law was amended to extend representation in those matters to the Supreme Court, which handles divorces. In addition, children have the right to assigned counsel (called Law Guardians or the Attorney for the Child).
Ontario County has set forth specific eligibility guidelines for the Assigned Counsel Program. Persons who are charged with a felony, misdemeanor, or the breach of other laws other than traffic infractions, for which a jail or prison sentence is possible are eligible for the Assigned Counsel Program. Counsel is also provided to eligible and indigent persons who have a right to assigned counsel under Sections 262 and 1120 of the Family Court Act, Section 407 of the Surrogates Courts Procedures Act, and Section 259i(3)(f)(v) of the Executive Law.
Traffic infractions and offenses without a jail or prison sentence, such as the possession of marijuana, are not eligible for assigned counsel. Any other case where a statutory entitlement to assigned counsel does not exist is not eligible for assigned counsel. Assigned counsel applies after a case is already pending in the courts, and will not help you to file a case in the courts.
Eligibility is determined by completing an Affirmation of Financial Status Form. The Court may permit the applicant to verbally provide answers to this form under oath. Financial status will be reviewed based on the County’s financial guidelines.The suggested maximum financial eligibility is 125% of the current official federal poverty income level. In 2009 this was $13,538.00 a year for a single person household.
If a minor is granted assigned counsel, a Parental Affirmation of Financial Status form is required to be submitted by custodial parents.
Each lawyer is paid for by the state, through their local counties. (See the NY Guide to Family Law). The County Legislature decides how the service will be provided in each County (Public Defender’s Office or Assigned Counsel system), and what financial guidelines will apply. Ontario County uses an Assigned Counsel System which can be contacted at (585) 396-2852. A Public Defender's office will start handling most criminal cases in 2010, but the Assigned Counsel Office will still handle Family Court and some criminal law cases.
Legal Assistance of the Finger Lakes is a civil legal services office which handles some civil cases for low income persons for free. Eligibility for those services is limited according to the office's resources and funding, and is not an "entitlement" program.