McMorris v. Michael W.

208 N.Y.S.3d 825

Investigator Melissa MCMORRIS, a Member of the New York State Police, Petitioner,

v.MICHAEL W., Respondent.

Supreme Court, Dutchess County.

Decided on March 26, 2024

Petitioner is represented by, NYS Attorney General’s Office, By: Meg Bailey, Assistant Attorney General, One Civic Center Plaza, Suite 401, Poughkeepsie, NY 12601, (845) 867-4229

Respondent was pro se.

Michael G. Hayes, J.

Petitioner seeks an Extreme Risk Protection Order (ERPO) against Respondent Michael W. under Article 63-A of the CPLR.

Respondent is the subject of related unindicted felony charges pending in the Town of Union Vale Justice Court arising out of the same facts and circumstances that serve as the basis of the ERPO filing. The pending criminal charges include Criminal Possession of a Weapon in the Third Degree (a Class D Felony), Reckless Endangerment in the First Degree (a Class D Felony), and Criminal Contempt in the First Degree (a Class E Felony). Respondent is represented in those proceedings by the Dutchess County Public Defender’s Office based upon a finding that he is indigent and cannot afford to retain counsel.

When Respondent appeared before this Court for the scheduled ERPO hearing, he asked the Court to appoint the Public Defender’s Office to represent him in the ERPO proceeding. It was also disclosed that Respondent was the subject of an Order for Psychiatric Examination pursuant to CPL Article 730. The Court advised Respondent that his request for the appointment of counsel in the ERPO proceeding would be held in abeyance pending the CPL 730 examination. The Court also deferred consideration of whether a Guardian ad Litem should be appointed on Respondent’s behalf in this ERPO proceeding pending the CPL 730 examination.

Respondent was subsequently found fit for trial in those related criminal proceedings. At this point, based upon my independent observations and interactions with Respondent in the courtroom, there appears to be no basis to appoint a Guardian ad Litem on his behalf in this ERPO proceeding.

In the past, I have informally asked the Public Defender’s Office to voluntarily appear in ERPO cases when it was already representing an indigent person in related criminal proceedings. However, the Public Defender notified me last year that the County Attorney has concerns about that informal arrangement. Upon receiving this information, I offered to provide the County Attorney with an opportunity to be heard the next time that I was presented with this situation.

The County Attorney has submitted a written brief that takes a careful and thoughtful look at the issue. This brief recognizes that there are conflicting trial court decisions that have reached different conclusions on various right to counsel issues under the existing statutory scheme. The brief also accurately observes that the Sixth Amendment right to counsel does not apply to civil proceedings, and that neither CPLR Article 63-A nor Article 18-b of the County Law provide any express statutory right to counsel in an ERPO proceeding. The County Attorney concludes its brief by taking a neutral position as to whether the Legislature’s "failure to do so violates the constitutional or due process rights" of indigent ERPO respondents, and instead defers that question to the courts.

The County Attorney has also shared correspondence that the New York State Office of Indigent Legal Services (ILS) previously sent to the Dutchess County Public Defender’s Office addressing this issue. In that letter, ILS took the position that "because of the unique nature of ERPO proceedings … in instances where a current client is facing related ERPO proceedings, public defense providers should represent the client at the ERPO proceeding whenever possible to fully protect the client’s rights on the related pending criminal and Family Court matter." That letter goes on to explain that:

ILS has steadfastly maintained that while respondents in ERPO proceedings are not entitled to assigned counsel under County Law Article 18-B, representing clients in ERPO proceedings in those narrow circumstances in which a public defense provider is currently representing a client on a related criminal or Family Court matter is consistent with public defense providers’ professional responsibility to protect the rights of their clients and to provide quality representation.

This is because ERPO proceedings, unlike other civil matters, involve unique circumstances in which the proceeding can have significant and meaningful consequences for a pending criminal or Family Court matter. As discussed in a Report of the New York State Bar Association Task Force on Mass Shootings and Assault Weapons ("NYSBA Report"), adopted by the NYSBA House of Delegates in November 2020, "because the application for an ERPO is a civil proceeding, it lacks certain protections that that attach to a criminal action and could potentially result in criminal jeopardy for a respondent."

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More specifically, ERPO proceedings necessarily involve law enforcement, either as a petitioning agency, as the agency responsible for enforcing an ERPO order, or both. Moreover, in most circumstances, an ERPO petitioner is represented by the Attorney General’s Office, while the low-income ERPO respondent is unrepresented. Finally, ERPO proceedings involve clients who are alleged to have mental illness. These circumstances — the involvement of law enforcement, a petitioner who is represented by an attorney against a mentally ill unrepresented respondent — produce an unlevel playing field that, as the NYSBA Report noted, jeopardizes the client’s rights on the related criminal or Family Court matter. Providing representation on the ERPO proceeding is the best means of protecting the client’s rights (internal citations omitted).

[1] The Court’s independent research confirms that no court with binding authority has rendered a decision on the precise issue presented here: whether the assignment of counsel for an indigent person is constitutionally mandated in an ERPO proceeding where there is a pending related criminal proceeding. For the reasons stated herein, I conclude that there is a federal and state constitutional right to counsel at an ERPO hearing when there are pending related criminal proceedings, and that an indigent person is entitled to the appointment of assigned counsel under those circumstances as a matter of due process and fundamental fairness.

[2] While there is no question that the Sixth Amendment right to counsel is limited to criminal proceedings, there is also no question that New York courts have recognized a constitutional right to the appointment of counsel in a variety of civil proceedings as a matter of due process and fundamental fairness [See e.g., Matter of Floyd Y., 22 N.Y.3d 95, 105, 979 N.Y.S.2d 240, 2 N.E.3d 204 (2013) (MHL Article 10 sex offender civil commitment proceedings); Matter of Jung (State Comm. on Jad. Conduct), 11 N.Y.3d 365, 373, 870 N.Y.S.2d 819, 899 N.E.2d 925 (2008) (FCA Article 8 family offense proceedings) ("Integral to this fundamental interest in the liberty, care and control of their children, and coextensive with the right to be heard in a meaningful manner, is a parent’s right to representation"); Matter of Rapoport v. G.M., 239 A.D.2d 422, 657 N.Y.S.2d 748 (2d Dept. 1997) (involuntary hospitalization due to a communicable disease); Matter of St. Luke's-Roosevelt Hospital Center, 159 Misc.2d 932, 607 N.Y.S.2d 574 (Sup. Ct. N.Y. County 1993) (Glen, J), aff’d 215 A.D.2d 337, 627 N.Y.S.2d 357 (1st Dept. 1995), aff’d 89 N.Y.2d 889, 653 N.Y.S.2d 257, 675 N.E.2d 1209 (1996) (MHL Article 81 guardianship proceedings); Rivers v. Katz, 67 N.Y.2d 485, 504 N.Y.S.2d 74, 495 N.E.2d 337 (1986) (administration of psychotropic medication over objection); Matter of Jennings v. Jennings, 42 A.D.2d 568, 344 N.Y.S.2d 93 (2d Dept. 1972) (FCA Article 4 enforcement proceedings); Matter of Ella B, 30 N.Y.2d 352, 334 N.Y.S.2d 133, 285 N.E.2d 288 (1972) (FCA Article 10 child neglect proceedings) ("A parent’s concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer"); Matter of Buttonow, 23 N.Y.2d 385, 297 N.Y.S.2d 97, 244 N.E.2d 677 (1968) (proceeding to review change of patient’s status from involuntary to voluntary civil commitment in a psychiatric facility); People ex rel. Rogers v. Stanley, 17 N.Y.2d 256, 270 N.Y.S.2d 573, 217 N.E.2d 636 (1966) (involuntary civil commitment in a psychiatric facility)].

Where a due process right to counsel exists, the Legislature has often taken the extra step of codifying that constitutional right and incorporating it within the statutory scheme. Some statutes implement this right to counsel without direct reference to its constitutional underpinnings. [See e.g., MHL § 9.60 (assisted outpatient treatment); MHL § 10.08 (sex offender civil commitment); MHL § 81.10 (guardianship)]. Article 2, Part 6 of the Family Court Act (Counsel for Indigent Adults in Family Court Proceedings) does so expressly, stating "Persons involved in certain family court proceedings may face the infringements of fundamental interests and rights … and therefore have a constitutional right to counsel in such proceedings. Counsel is often indispensable to a practical realization of due process of the law …" [FCA § 261 (Legislative findings and purpose)].

The Family Court Act and the Surrogate’s Court Procedure Act provide an itemized list of the proceedings that automatically qualify for the assignment of counsel [FCA § 262(a); SCPA § 407(1)(a)]. In addition to those designated proceedings, those statutes also provide the court with the authority to assign counsel to any adult in any other Family Court or Surrogate’s Court proceeding upon a judicial determination that such assignment is...