SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

333 

OP 10-02073 

PRESENT: PERADOTTO, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.

 

 

IN THE MATTER OF TODD M. SMITH, PETITIONER, 

V MEMORANDUM AND ORDER

HON. JAMES C. TORMEY, DISTRICT ADMINISTRATIVE 

JUDGE, FIFTH JUDICIAL DISTRICT, COUNTY OF 

ONONDAGA, AND ONONDAGA COUNTY BAR ASSOCIATION 

ASSIGNED COUNSEL PROGRAM, INC., AS PARTIES 

INTERESTED IN THE DETERMINATION, RESPONDENTS. 

 

GARY H. COLLISON, LIVERPOOL, FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF

COUNSEL), FOR RESPONDENT HON. JAMES C. TORMEY, DISTRICT ADMINISTRATIVE

JUDGE, FIFTH JUDICIAL DISTRICT. 

BOND, SCHOENECK & KING, PLLC, SYRACUSE (JONATHAN B. FELLOWS OF

COUNSEL), FOR RESPONDENTS COUNTY OF ONONDAGA AND ONONDAGA COUNTY BAR

ASSOCIATION ASSIGNED COUNSEL PROGRAM, INC., AS PARTIES INTERESTED IN

THE DETERMINATION. 

 

Proceeding pursuant to CPLR article 78 (initiated in the

Appellate Division of the Supreme Court in the Fourth Judicial

Department pursuant to CPLR 506 [b] [1]) to annul an administrative

review of fee award. 

It is hereby ORDERED that the petition is unanimously granted in

part and the determination is annulled on the law without costs.

Memorandum: Petitioner commenced this original CPLR article 78

proceeding seeking, inter alia, to annul the administrative

determination of respondent District Administrative Judge (hereafter,

Administrative Judge) that Onondaga County Court (hereafter, County

Court), which presided over the criminal proceeding in question, had

no authority to appoint petitioner as assigned counsel in the criminal

proceeding or to award legal fees to petitioner. We agree with

petitioner that the Administrative Judge exceeded his authority

pursuant to 22 NYCRR 127.2 (b) and thus grant that part of the

petition seeking to annul the administrative determination (see CPLR

7803 [2]; 7806).

This proceeding arises from petitioner’s representation of the

defendant in a high profile murder prosecution in County Court. Given

the complex nature of the case, the defendant’s retained counsel
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requested that petitioner assist with the defense, and petitioner

agreed to do so. At the time, petitioner was not on a panel list of

respondent Onondaga County Bar Association Assigned Counsel Program,

Inc. (hereafter, ACP), a not-for-profit corporation responsible for

providing legal services to indigent persons in Onondaga County. 

After the defendant exhausted her financial resources during pretrial

proceedings, County Court appointed the defendant’s retained counsel

as assigned counsel, and petitioner continued to serve as co-counsel. 

Meanwhile, petitioner applied to be placed on the ACP panel list for

misdemeanors, and his application was granted. Two weeks after the

jury returned its verdict in the at-issue criminal proceeding,

petitioner was placed on the ACP panel list for felonies. After the

completion of the trial, County Court determined that the defendant

lacked the means to retain counsel and ordered that petitioner

therefore “continue to represent [her] at County expense . . . [u]ntil

the matter is completed.” Petitioner requested that ACP compensate

him for services rendered to the defendant during the trial, and also

submitted an affidavit of extraordinary circumstances seeking

compensation in excess of the statutory maximum (see County Law § 722-

b [2] [b]). ACP denied petitioner’s request for payment because

petitioner was “off panel”. Upon petitioner’s appeal to ACP’s

Executive Committee, the Executive Committee affirmed the denial of

petitioner’s request for compensation.

Petitioner thereafter moved in County Court for an order pursuant

to County Law § 722-b and 22 NYCRR 1022.12 granting fees in excess of

the statutory limits for assigned counsel. Respondent County of

Onondaga (hereafter, County) and ACP opposed the motion, contending

that petitioner was ineligible for appointment as assigned counsel,

and that County Court was obligated to assign counsel pursuant to the

plan adopted by the County and set forth in ACP’s handbook. County

Court granted petitioner’s motion and ordered that ACP compensate

petitioner for his services rendered from the time petitioner was

first included on an ACP panel list through the conclusion of the

criminal proceeding.

The County and ACP requested that the Administrative Judge review

County Court’s order pursuant to 22 NYCRR 127.2 (b). The

Administrative Judge thereupon rendered an administrative

determination granting the application of the County and ACP,

determining that petitioner “never timely applied to be appointed for

ACP nor was he qualified to be appointed by ACP as a second-seated

counsel.” Noting that it was not within County Court’s “purview to

appoint a person that is not on the ACP panel in accordance with §

722-b of County Law,” the Administrative Judge concluded that “there

was no authority to award any fees” to petitioner. He further

concluded that “any legal fee award” to petitioner would have been

“excessive.” In reaching his determination, the Administrative Judge

rejected the contention of petitioner that administrative review

should be limited to “review of payments for extraordinary

circumstances only,” concluding instead that he was vested with the

authority to review compensation pursuant to 22 NYCRR 127.2. That was

error.
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OP 10-02073 

As an initial matter, we reject the contention of the County and

ACP that this Court lacks the power to review the administrative

determination. “[A]lthough our authority to review the merits of

orders awarding compensation to assigned counsel is extremely

curtailed . . ., we do have the authority to review challenges related

to the court’s power to assign and compensate counsel pursuant to a

plan or statute” (Goehler v Cortland County, 70 AD3d 57, 61; see

Matter of Harvey v County of Rensselaer, 83 NY2d 917, 918; Matter of

Parry v County of Onondaga, 51 AD3d 1385, 1387; Matter of Legal Aid

Socy. of Orange County v Patsalos, 185 AD2d 926). Here, the

Administrative Judge set aside the compensation award on the ground

that County Court had no authority under the ACP plan or County Law §

722-b to assign petitioner or to award him fees. Thus, the

determination directly implicated County Court’s power to assign and

compensate counsel pursuant to a plan or statute, bringing the review

of the determination within our purview (see generally Matter of

Director of Assigned Counsel Plan of City of N.Y.[Bodek], 87 NY2d 191;

Goehler, 70 AD3d at 61). Stated differently, because the

determination of the Administrative Judge was a judicial or quasijudicial action, as opposed to a strictly administrative action,

prohibition lies (see Siegel, NY Prac § 559 [4th ed]).

On the merits, we agree with petitioner that the Administrative

Judge exceeded his authority pursuant to 22 NYCRR 127.2 (b). That

rule provides that the appropriate administrative judge may review an

order of a trial judge “with respect to a claim for compensation in

excess of the statutory limits . . . [and] may modify the award if it

is found that the award reflects an abuse of discretion by the trial

judge” (emphasis added). Thus, under the plain language of the rule,

an administrative judge’s authority is limited to modifying an excess

compensation award if the amount awarded is determined to be an abuse

of discretion. Here, the Administrative Judge determined that the

court had “no authority to award any fees to an attorney who is not

appointed by the [c]ourt prior to rendering the services, and who was

not qualified by the accepted rules to handle a case such as this.”

That determination is outside the purview of 22 NYCRR 127.2 (b). We

therefore grant that part of the petition seeking to annul the

administrative determination (see CPLR 7803 [2]).

Petitioner’s second request for relief, i.e., a judgment

“determining that the [p]etitioner be paid for his services . . . in

accordance with” County Court’s March order, is rendered unnecessary

by our annulment of the administrative determination. Although the

County and ACP contend that County Court’s appointment of petitioner

as assigned counsel was unauthorized inasmuch as petitioner was not

“qualified” under ACP rules and therefore was not “assigned in

accordance with a plan of a bar association conforming to the

requirements of [County Law § 722]” (County Law § 722-b [1] [emphasis

added]), the validity of that contention is not an issue that is

properly before us in this proceeding. Rather, the County and/or ACP

should have commenced a CPLR article 78 proceeding seeking a writ of

prohibition on the ground that County Court was acting in the absence

or in excess of its jurisdiction pursuant to County Law § 722 (see
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generally Matter of McNamara v Tormey, 42 AD3d 971, 972), or should

have sought leave to appeal from County Court’s order (see CPLR 5701

[c]). The County and/or ACP failed to do so, and the time within

which to seek leave to appeal or to commence a CPLR article 78

proceeding has expired (see CPLR 217 [1]; 5513 [b]). We therefore

conclude that the County and ACP are bound by County Court’s order,

and that relief in the form of mandamus is unnecessary. 

Entered: April 1, 2011 Patricia L. Morgan

Clerk of the Court