NYCL AGO 95-16.

Case DateMarch 02, 1995
CourtNew York
New York Attorney General Opinions 1995. AGO 95-16. March 2, 1995Informal Opinion No. 95-16Stephen L. Oppenheim, Esq. County Attorney County of Sullivan P. O. Box 5012 Monticello, NY 12701COUNTY LAW, ART 18-B, §§ 2(b), 722; L 1965, CH 878.A charter county may not set up a plan for the representation of indigent defendants which is inconsistent with the options provided by section 722(1-4) of the County Law. In order to establish such a plan for Sullivan County, an act of the State Legislature would be required.Dear Mr. Oppenheim: You have asked whether a charter county, in exercising the powers granted by section 2(b) of the County Law or in exercising other home rule powers, may set up a plan for the representation of indigent defendants which is different from the options granted by County Law § 722. Section 2(b) of the County Law provides that no section of the County Law applies to any charter county that has enacted or in the future enacts an inconsistent charter law or local law unless the section of the County Law includes a "contrary intent" to restrict action by the charter county. The obvious purpose of this provision is to grant to a charter county the flexibility to establish the structure of its government and the manner in which county government is to function in order to meet local needs. If charter governments were invariably required to be consistent with every provision of the County Law, there could never be an alternative form of county government or effective home rule for counties. See, Heimbach v Mills, 67 AD2d 731, 732 (2d Dept 1979). Compare, Davis Const. Corp. v County of Suffolk, 95 AD2d 819, 820 (2d Dept 1983), where a contrary intent in a provision of the County Law invalidated a local law enacted by a county. As you have pointed out, section 722 of the County Law does not include a contrary intent within is provisions. Section 722 requires the governing body of each county to place in operation throughout the county a plan for providing counsel to indigent persons charged with crimes and to others who are entitled to counsel under provisions of the family Court Act and the Surrogate Court Procedure Act. Generally, the plan may provide for representation by a public defender, a private legal aid bureau or society, counsel furnished in accordance with a plan of a bar association in the...

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