[661 NE2d 988, 638 NYS2d 415]

#### In the Matter of Director of the Assigned Counsel Plan of the City of New York, Appellant. Hillel Bodek, Respondent. The People of the State of New York, Respondent, v James Townsend, Defendant. (And Other Criminal Actions).

Argued October 17, 1995;

decided December 21, 1995

*192POINTS OF COUNSEL

*Paul A. Crotty, Corporation Counsel*of New York City *(Julian L. Kalkstein, Leonard Koerner*and *Larry*A. *Sonnenshein*of counsel), for appellant.

I. County Law § 722-c, which authorizes the provision of expert services necessary for the defense of an indigent defendant, and which sets a limit of $300 per matter except in "extraordinary circumstances” was not enacted to provide a vehicle whereby a particular social worker could perform mental health evaluations at $100 per hour and, in virtually every matter he handled, charge thousands of dollars and thereby secure a yearly remuneration that exceeded the salary of every single other 18-B expert, Judge and elected official in the State of New York when the same services are available at far less cost. *(People v Louis,*161 Misc 2d 667; *Ake v Oklahoma,*470 US 68; *Matter of Werfel v Agresta,*36 NY2d 624; *People v Perry,*27 AD2d 154; *United States v Durant,*545 F2d 823; *People v Gallow,*171 AD2d 1061, 77 NY2d 995; *United States v Oliver,*626 F2d 254.) II. The City, as a nonparty to a criminal action, has a right of appeal to an order from the Criminal Court directing it to pay the fee of an expert appointed pursuant to County Law § 722-c. *(Matter of Werfel v Agresta,*36 NY2d 624; *Brady v Ottaway Newspapers,*97 AD2d 451, 63 NY2d 1031; *People v New York Cent R. R. Co.,*29 NY 418; *Matter of New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn.,*78 NY2d 318; *Matter of Abrams [John Anonymous],*62 NY2d 183; *People v Schonfeld,*74 NY2d 324; *Matter of Byrnes v County of Monroe,*128 Misc 2d 700; *Corkum v Bartlett,*46 NY2d 424; *Matter of Guardian Life Ins. Co. v Bohlinger,*308 NY 174.)

*King & Spalding,*New York City *(Brian Rosner*of counsel), for Hillel Bodek, respondent.

The May 12, 1993 orders directing the City to compensate a defense expert appointed by the trial court pursuant to County Law § 722-c are not reviewable on appeal. *(Matter of Werfel v Agresta,*36 NY2d 624; *People v Ward,*199 AD2d 683; *Matter of Kindlon v County of Rensselaer,*158 AD2d 178; *Byrnes v County of Monroe,*129 AD2d *193229; *People v Elliot,*98 Misc 2d 424; *People v Louis,*161 Misc 2d 667.)

*Malvina Nathanson,*New York City, for New York State Association of Criminal Defense Lawyers, *amicus curiae.*

Under the enabling legislation and the effectuating plans, rules and regulations, the City must pay the section 722-c vouchers as approved by the trial courts. *(Matter of Kindlon v County of Rensselaer,*158 AD2d 178; *Byrnes v County of Monroe,*129 AD2d 229; *People v Perry,*27 AD2d 154; *Ake v Oklahoma,*470 US 68; *Matter of Werfel v Agresta,*36 NY2d 624.)

OPINION OF THE COURT

Per Curiam.

In *Matter of Werfel v Agresta*(36 NY2d 624), this Court held that an order issued pursuant to County Law §§ 722 and 722-b regarding an assigned criminal defense attorney’s compensation is not subject to appellate review. This appeal requires us to consider the appealability and reviewability of compensation orders issued pursuant to County Law § 722-c.

The dispute arises out of services that were rendered by respondent Hillel Bodek, a certified social worker, in connection with several criminal cases that were pending before the Supreme Court in New York County. In each instance, Bodek had been appointed by the court to provide professional services to indigent defendants and the court directed that the City of New York pay him at a rate of $100 an hour for those services. In seven of the eight cases, the court also found "extraordinary circumstances” justifying significant departures from the statutory norm of $300 per case *(see,*County Law § 722-c).

The Director of the Assigned Counsel Plan for New York City asked the two Supreme Court Justices who had issued the compensation orders to reconsider them, particularly in light of contemporary budget constraints and the $45 maximum hourly rate for social workers prescribed by the Chief Administrator of the Courts *(see,*22 NYCRR 127.2 [b]). Her requests for relief, which were made through informal letters and a formal motion *(see,*22 NYCRR 127.2 [b]), were unsuccessful.

Following the denial of all of her fee reduction requests, the Director attempted to appeal from the Supreme Court’s various "orders.” The Appellate Division consolidated the appeals and affirmed. Conceding that the challenged orders might *194technically be appealable by the Director, an aggrieved nonparty, the Court nevertheless declined to consider the appeals’ merits, holding that the orders were not reviewable under *Matter of Werfel v Agresta (supra).*This Court subsequently granted the Director leave to take a further appeal.

Initially, we note that, with respect to the appealability question, there is no meaningful distinction between the County Law '§§ 722 and 722-b assigned-counsel compensation order sought to be appealed in *Matter of Werfel v Agresta (supra)*and the County Law § 722-c assigned-expert compensation orders sought to be appealed here. Nonetheless, the rationale in *Werfel*does not pose an impenetrable barrier to appealing these challenged orders, since the analyses in more recent cases such as *Matter of Abrams (John Anonymous)*(62 NY2d 183), *Matter of Hynes v Karassik*(47 NY2d 659) and *Matter of Cunningham v Nadjari*(39 NY2d 314) are fatal to the continuing validity of that rationale in the present context *(cf., Matter of Santangello v People,*38 NY2d 536; *Matter of Alphonso C.,*38 NY2d 923).

Despite the technical appealability of the challenged orders, however, the Appellate Division did not err in refusing to entertain the merits of the Director’s challenge. As is indicated in the final paragraphs of *Werfel (supra,*at 627), trial court orders granting or denying increases in the statutorily recommended fees under County Law §§ 722, 722-b and 722-c "provide no basis for justiciable review.” Such orders are essentially administrative in nature and, accordingly, are not amenable to judicial review on the merits by an appellate panel *(cf., Matter of Harvey v County of Rensselaer,*83 NY2d 917 [addressing court’s *power*under County Law § 701 to award compensation for services performed by Special Prosecutor’s associates]).

Although the point is not dispositive, we note that formal appellate review of these compensation orders is impractical, since the appeals courts are several steps removed from the circumstances in which the services were rendered and are therefore not well positioned to assess the wisdom of the Trial Judges’ discretionary choices. To the extent that the trial courts’ unreviewable discretion produces truly anomalous consequences or patterns of abuse in particular situations, the problem can and should be addressed through the available administrative tools.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Bellacosa, J.

(concurring). Judge Smith and I also vote to *195affirm, but only under the constraint of *Matter of Werfel v Agresta*(36 NY2d 624) on the nonjusticiable reviewability point and for these separately stated reasons.

The genesis of this exceptional compensation controversy is a long-standing practice of some Supreme Court Justices in Manhattan using a social services expert to provide the court with help in connection with a series of criminal cases. No one questions the right and need for the Judges to receive this assistance or the entitlement of experts to be properly compensated.

In the assembly of the cases now before us, the certified social worker was appointed, and after completion of the services, he submitted separate applications for court-ordered compensation. In seven of the eight cases, the courts found that the "extraordinary circumstances” statutory standard warranted compensation greatly in excess of the $300 prescribed maximum per case *(see,*County Law § 722-c). The courts also ordered the City of New York to pay at a rate of $100 an hour for services rendered in each of the separate criminal proceedings, a factor itself more than double the rate reflected in the Chief Administrative Judge’s rule (22 NYCRR 127.2 [b]). The City of New York was never a party to the payment proceedings and was never afforded any opportunity to contest the fee requests or ordered payments. In total, the social worker was awarded in excess of $28,300 for just these cases — 10 times greater than the statutory and rule maxima that would have totalled only $2,400.

Appellant, the Director of the Assigned Counsel Plan for New York City, became obligated, pursuant to the judicial orders, to pay the fees out of budgeted New York City appropriations. She sought at the earliest opportunity an initial review from the Justices who in the first instance ordered the payments. She requested that the courts at least adhere to the $45 per hour maximum rate for social workers prescribed by the Chief Administrative Judge (22 NYCRR 127.2 [b]). In each case, the trial courts granted reconsideration but adhered to their original orders. The Director’s further attempt at review, pursuant to the Rules of the Chief Administrator (22 NYCRR 127.2 [b]), was rejected by the Justices on the ground that they were the sole, unreviewable adjudicators of these compensation matters.

The Director then appealed four separate orders of Supreme Court that respectively denied seven applications of review or *196reconsideration of ordered payment vouchers for expert services. The Appellate Division consolidated the appeals and affirmed (207 AD2d 307). That Court treated the orders as appealable by affirming, but then ruled that they were "nevertheless not reviewable” under *Matter of Werfel v Agresta*(36 NY2d 624, *supra) (id.,*at 308). This Court granted leave to appeal and we agree unanimously under recent precedential developments that *Matter of Werfel v Agresta (supra)*is not a bar to appealability.

*Matter of Hynes v Karassik*(47 NY2d 659), *Matter of Abrams (John Anonymous)*(62 NY2d 183) and *Matter of Codey (Capital Cities, Am. Broadcasting Corp.)*(82 NY2d 521) justify our treating, these compensation orders made pursuant to County Law § 722-c as civil, rather than criminal in nature. They in no way affect the criminal proceeding or judgment itself and are entirely collateral to and discrete from the criminal proceeding *(see, Matter of Hynes v Karassik,*47 NY2d 659, 661, n 1, *supra).*The express authorization for ordering the compensation at issue is also located in a *civil*compilation of statutes, County Law § 722-c. Thus, the appealability threshold issue is different from *Werfel (see also, Matter of Harvey v County of Rensselaer,*83 NY2d 917; *Yalango v Popp,*84 NY2d 601).

The other half of the *Werfel*equation — justiciable review-ability even under the peculiar and narrow circumstances of this intractable controversy — continues, however, to confound and block desirable and realistic solution. It is for that reason that we must join in the affirmance result.

County Law § 722-c provides that a court may authorize expert services in connection with the prosecution of an action against an indigent defendant. The statute provides that "[t]he court shall determine reasonable compensation for the services and direct payment to the person who rendered them or to the person entitled to reimbursement. Only in *extraordinary circumstances*may a court provide for compensation *in excess of three hundred dollars'”*(emphasis added).

In *Matter of Werfel v Agresta*(36 NY2d 624, *supra),*this Court, *inter alla,*addressed the reviewability aspect of an assigned counsel compensation order made pursuant to County Law § 722-b, a statute similar, but not identical, to County Law § 722-c. This Court was divided, but held that the Appellate Division lacked power to review the lawyer’s request to increase the allowance made pursuant to County Law §§722 and 722-b. The Court held further that the assigned attorney had no right to relief under CPLR article 78 and stated that *197fixing compensation for assigned counsel "might” be characterized as "administrative.”

While the civil proceeding and appeal are undeniably properly before this Court and some different procedural and juridical features from *Werfel*are present, we can discern no principled legal, route to overcome its binding precedential effect on the justiciability and reviewability issue.

Distinctive features include that the Director and the municipal payor in this case were never parties in these matters originally, as attorney Werfel was in his case; nor did the appellant or City have any opportunity to contest, participate in or challenge the payment proceedings. They reasonably relied from the outset on statutory and formal administrative rule caps, limits and standards, and assigned counsel Werfel took his assignment with binding knowledge of the limitations of his statutory service. Arguably, the proceeding to challenge the excessive fees here is not essentially "administrative,” as in *Werfel,*because a statute and a regulation with prescribed standards and limits appear to have been facially and egregiously overridden in this case. Yet, with all that said, the equal application and general rationale of the justiciabilityreviewability bar erected in *Werfel*compel adherence on stare decisis grounds alone.

We would like to emphasize, however, that the lack of any judicial review or appropriate check-and-balance of unilateral trial court action in these public services and public fiscal matters is unfortunate. As this case demonstrates, substantial fiscal consequences to a municipality are in play, as well as serious inter- and intra-branch tensions and contests relating to completely unchecked power of the purse and compensation authority.

It seems entirely fitting, proper and appropriate that some specific regulatory and review power with respect to "extraordinary circumstances” public services payments situations be explicitly invested in the Appellate Division or the Chief Administrative Judge or both (see, *e.g., People v Perry,*27 AD2d 154, 163; *Yalango v Popp,*84 NY2d 601, 607-608, *supra).*As this case demonstrates, unless the legislative and the judicial branches exercise their available and appropriate regulatory powers (see, *e.g.,*NY Const, art VI, § 28; Judiciary Law § 212) to promulgate effective mechanisms for some review of such matters, a provider may be unilaterally rewarded far in excess of extant statutory or rule authorizations and limitations. This imprudent potentiality, no less the actuality, reflected so *198dramatically by the intractable situation underlying this controversy, should be remedied for the sake of sound procedure and the protection of the public purse.

Judges Simons, Titone and Levine concur in Per Curiam opinion; Judge Bellacosa concurs in result in a separate opinion in which Judge Smith concurs; Chief Judge Kaye and Judge Ciparick taking no part.

Order affirmed, without costs.