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Paying for a criminal defense

By Harvey Randall, Esq.

Paying for a criminal defense
Police Benevolent Assoc. v. Vacco, App. Div., 253 A.D.2d 920

Robert C. Gregory, a State Trooper, was indicted on March 23, 1995 by a Westchester County Grand Jury for the crimes of tampering with public records in the first degree, offering a false instrument for filing in the first degree, tampering with physical evidence and official misconduct. All these charges stemmed from his investigation of a hit and run accident that occurred on April 3, 1993 in the Town of Cortlandt, Westchester County.

Criminal charges against Gregory were dismissed on August 21, 1996. Meanwhile, in accordance with Public Officers Law Section 19 (2) (b), Gregory sent a letter to the State Attorney General applying for reimbursement for reasonable counsel fees and litigation costs incurred in the defense of the charges against him.

The Attorney General denied Gregory?s request on the grounds that tampering with physical evidence and official misconduct did not arise out of an act that occurred within the scope of Gregory?s public employment and duties. Furthermore the Attorney General said Gregory was not entitled to reimbursement because he did not request reimbursement within 10 days of his arraignment as required by Public Officers Law Section 19. [1]

Gregory sued and a State Supreme Court justice vacated the Attorney General?s determination. The Attorney General appealed.

In a 4 to 1 decision, the Appellate Division affirmed the lower court?s ruling. Finding that the Attorney General?s denial of Gregory?s request ?lacked a rational basis,? the Appellate Division affirmed the Supreme Court?s judgment, citing Pell v. Board of Education, 34 NY2d 222, 231. The Pell decision, which applies a ?shocking to one?s sense of fairness? test, is often cited in appeals from disciplinary actions.

As to the timeliness argument raised by the Attorney General, the Appellate Division said that it has held ?that similar provisions contained in Public Officers Law Section 17 (4) and Section 18 (5) are not to be construed as a condition precedent to suit? and it saw ?no reason for treating the notice provision of Public Officers Law Section 19 (3) differently....? Accordingly, the court held that Gregory?s one-day ?failure to comply with its requirements is not a bar to this proceeding.?

The full text of the decision is posted at:

http://publicpersonnellaw.blogspot.com/2008/01/paying-for-criminal-defense.html

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[1] Gregory had requested reimbursement after 11 days after his arraignment.

Full post as published by New York Public Personnel Law on January 23, 2008 (boomark / email).