Supreme Court, Franklin County, April 5, 2023

Janelle LaVigne, County Attorney, for Franklin County, nonparty.

Upon the court's own motion for assignment of counsel to respondent, W.M. (name redacted), for representation in the upcoming CPLR article 63-A extreme risk protection order (hereinafter ERPO) proceeding, and the Franklin County Attorney, Janelle LaVigne, Esq., having been heard on the matter at an appearance held on this day, the court makes the following findings:

On March 22, 2023, an application made pursuant to CPLR 6341, requesting a temporary extreme risk protection order, was filed by Investigator J.P. of the New York State Police against respondent W.M. (DOB redacted). Petitioner alleged that on March 22, 2023, in the Town of Brandon, New York, in Franklin County, while reportedly under the influence of alcohol, respondent loaded a Mossberg Maverick 12 gauge shotgun with two cartridges, then threatened to shoot his sick, elderly dog and then himself. The dog was kept inside by others in the home. Respondent then went outside and shot the gun prompting a call to police. Upon troopers' arrival at the scene, respondent was in possession of the shotgun, still loaded with one round. A spent round was located outside consistent with witness accounts. It is written in the application that "the Respondent cannot legally possess a rifle, shotgun or firearm due to a previous serious conviction, and criminal charges for weapons possession are currently pending."

It is apparent on the face of this petition that the acts alleged implicate the defendant in a crime, as he is legally prohibited from owning or possessing guns. Even a misdemeanor weapons charge carries with it the possibility of incarceration. As aptly noted in an article about New York's{**79 Misc 3d at 645} Red Flag Laws, "[t]hese 'civil' laws have criminal law implications."^[FN1]

As it stands currently, there is no right to counsel for this particular civil proceeding built into the statute.^[FN2] The ERPO statute simply fails to take into consideration the possibility of criminal charges and the need for additional due process protection in some cases. The Supreme [*2]Court has repeated that "[d]ue process is flexible and calls for such procedural protections as the particular situation demands." (Mathews v Eldridge, 424 US 319, 334 [1976], quoting Morrissey v Brewer, 408 US 471, 481 [1972].) Here, the particular situation demands the assignment of counsel for adequate procedural protection.

In other civil court proceedings, the legislature has determined that due process requires the assignment of counsel. Article 2, part 6 of the Family Court Act, section 261 (Legislative findings and purpose) states in part, "Persons involved in certain family court proceedings may face the infringements of fundamental interests and rights, including the loss of a child's society and the possibility of criminal charges, and therefore have a constitutional right to counsel in such proceedings." (Emphasis added.) Family Court Act § 262 (a) allows for the assignment of counsel to respondents in various proceedings, including but not limited to article 10, article 10-A, article 8, article 6, and article 5 proceedings. More significantly, Family Court Act § 262 (b) contains the following language:

"In addition to the cases listed in subdivision (a) of this section, a judge may assign counsel to represent any adult in a proceeding under this act if he determines that such assignment of counsel is mandated by the constitution of the state of New York or of the United States, and includes such determination in the order assigning counsel"; and as in subdivision (c), "[a]ny order for the assignment of counsel issued under this part shall be implemented as provided in article eighteen-B of the county law."

Likewise, the Surrogate's Court Procedure Act, article 4, includes a statute for the assignment of counsel for civil proceedings. (See SCPA 407, Assignment of counsel for indigent{**79 Misc 3d at 646} persons.) SCPA 407 (1) (b) contains nearly identical language to that found in Family Court Act § 262, and states, "a judge may assign counsel to represent any adult in a proceeding under this act if he determines that such assignment of counsel is mandated by the constitution of this state or of the United States, and includes such determination in the order assigning counsel" and as in subdivision (2), "[a]ny order for the assignment of counsel issued under this section shall be implemented as provided in article eighteen-B of the county law." (SCPA 407.)

At best, the failure to allow for counsel under article 63-A ERPO was the result of shortsightedness on the part of the legislature. At worst, it was an attempt to deny indigent respondents the same due process protection under the ERPO law that has been afforded to respondents in other civil proceedings when their liberty is in jeopardy. Without judicial intervention, only those respondents with the financial means to afford counsel can adequately safeguard their rights. This is simply unacceptable.

Our State and Federal Constitutions demand more protection than is set forth in the ERPO statute, especially where, as here, the party dynamics involve legal expertise on the one side, as the petitioner is often a police officer represented by the Attorney General or the district attorney, and a layperson respondent not trained in the law whatsoever on the other side. Notably, this court is not the first to question the due process protections missing from this statute in its present form. In G.W. v C.N., the court found that the statute, as currently written, was unconstitutional because of the lack of adequate due process protection. (G.W. v C.N., 78 Misc 3d 289 [Sup Ct, Monroe County 2022].)

The legislature should remedy this shortcoming by adding a subsection to CPLR article 63-A to include the language found in both the Family Court Act, Family Court Act § 262 (b) and (c), and the Surrogate's Court Procedure Act, SCPA 407 (1) (b) and (2)—"a judge may assign counsel to represent any adult in a proceeding under this act if he determines that such assignment of [*3]counsel is mandated by the constitution of this state or of the United States, and includes such determination in the order assigning counsel" and that "[a]ny order for the assignment of counsel issued under this section shall be implemented as provided in article eighteen-B of the county law." (SCPA 407; Family Ct Act § 262.) Such an addition would ensure that New{**79 Misc 3d at 647} York's judiciary could properly safeguard a respondent/criminal defendant's rights in the context of an ERPO proceeding which might involve a pending criminal investigation or current criminal charges.

The Franklin County Attorney appeared before this court and shared the court's concerns. Counsel noted, and this court agrees, the statute was well intentioned in an effort to keep people from harming themselves and/or others; however, it was "possibly not thought . . . logically through to the end" regarding the possibility of rights violations. Counsel consented, on behalf of the County, to the assignment of counsel under these circumstances, reasoning that since there is already a mechanism in place for criminal defendants to be afforded counsel, when the facts presented on a TERPO/ERPO application are also the basis for criminal charges, that person should be permitted assigned counsel for the ERPO proceeding.

Ultimately, this court feels compelled by its sworn oath to uphold the State and Federal Constitutions, as well as its ethical obligation to safeguard the rights of individuals appearing before it, to assign counsel upon the request of this or any indigent respondent where it is apparent on the face of the ERPO application that the allegation involves a criminal investigation, potential criminal liability, and a possible loss of liberty.

Upon the record before it, the court finds the right to counsel is constitutionally mandated for this proceeding, and with the Franklin County Attorney's consent, orders defendant to be afforded counsel. The court finds every respondent is entitled to representation under circumstances such as these, and if that person cannot afford an attorney, one should be provided. In light of Franklin County's expressed general position on the issue, this court will appoint counsel in not only this matter, but all future matters of a similar nature. The court does not take this step lightly as it is yet again another unfunded mandate for which local taxpayers must bear the burden. Franklin County is a rural county with a 2022 poverty rate of 19.38% making it the fifth highest poverty rate in New York State according to data from the Census Bureau's American Community Survey (ACS) Report S170. The fact that our county legislature allowed the county attorney to authorize the appointment of counsel in these cases should be commended and set an example for more affluent counties to follow, should the state legislature not address this obvious oversight. It is clear{**79 Misc 3d at 648} that the potential for criminal charges, and possible loss of liberty, demands nothing less. This court strongly urges the legislature to revisit CPLR article 63-A and immediately amend it to safeguard the rights of respondents.

Now, therefore, it is hereby ordered that defendant be afforded counsel for the ERPO hearing scheduled for March 27, 2023; and it is further ordered that the Franklin County Assigned Counsel Coordinator accept and process the application for representation in the above matter and assign counsel if the respondent qualifies as indigent.