from the
NYS Assembly
Judiciary Committee

Sheldon Silver, Speaker · Helene E. Weinstein, Chair
Legislative Office Building, Room 831, Albany, NY 12248 n December 2003
Letter from the Chair
The 2003 Legislative Session was dominated by the budget battle between the Legislature and the Governor. Led by Assembly Speaker Sheldon Silver, the Assembly joined with the Senate in passing a historic legislative budget and then united once again to override the Governor’s veto. A highlight of the legislative budget was the increase in 18B assigned counsel and law guardian rates advocated by the Assembly for years, which assured an end to what had become a worsening crisis. To fund the new 18B rates as well as provide continuing dollars for court facilities renovation and maintenance, the legislative budget increased the biennial attorney registration fee, while adding new court fees and increasing others. However, the Legislature rejected a number of other court fee increases that had been proposed by the Governor which would have had a chilling effect on the ability of New Yorkers to exercise their legal rights. Once again, through the efforts of the Assembly, almost $3 million was added to the state budget to fund civil legal services. Moreover, for the first time in years, the Office of Court Administration proposed budget was reduced, with OCA experiencing a $10 million cut.

In addition, the Judiciary Committee advanced myriad legislative proposals: measures protecting children and families and aiding persons who require guardians, revising laws relating to structured judgments in medical malpractice cases, as well as trusts and estates and civil practice amendments. The highlights that follow demonstrate the diversity of the Judiciary Committee’s work.


Helene E. Weinstein, Chair
Assembly Judiciary Committee

Legislature Acts To End Assigned Counsel Crisis

In a historic vote on May 15th, the Legislature overrode the Governor’s veto of the legislative budget bill including the first increase in assigned counsel rates for law guardians and 18B assigned counsel since the mid-1980’s (A. 2106-B). The legislative override assures an end to the worsening crisis which threatened New York’s ability to live up to its responsibility to provide proper legal representation to those who cannot afford to pay. Assembly Speaker Sheldon Silver, Judiciary Committee Chair Helene Weinstein and the Assembly Majority have fought for this rate increase for many years. Due to the inadequacy of current rates, the number of attorneys actively taking court assignments, particularly in New York City, has diminished dramatically resulting in repeated adjournments in family and criminal courts, as well as reductions in the level of experience of counsel.

Beginning on January 1, 2004, the rate for law guardians and 18B counsel will be increased to $75 an hour, except in misdemeanor cases, where the rate will be $60 per hour. Per case caps on compensation will increase from $1200 to $4400 ($800 to $2400 in misdemeanor cases). Caps for experts and investigative services will increase from $300 to $1000 per expert or investigative service. To help localities which are responsible for paying assigned counsel to cover the fee increases and assist the state which pays law guardians, the legislative budget created a $64 million dedicated funding stream, to be known as the Indigent Legal Services Fund.

The new fund will be generated by proceeds from a $50 increase in the attorney registration fee, a new $35 fee on traffic scofflaws, an increase in the fee collected by the Office of Court Administration for criminal history searches, and increased vehicle and traffic surcharges. The new 18B law requires that all of the funds provided by the state to local governments be used to improve the quality of public defense services. Over the coming years, the state, local governments, public defense providers and public defense advocates must work together to ensure that the rate increases and new resources provided by the 18B legislation result in real improvements in the quality of the public defense system in New York.

18B Court of Appeals Celebration

Chief Administrative Judge Jonathan Lippman looks on as Assembly Judiciary Chair Helene Weinstein addresses members of the bench and bar gathered at the Court of Appeals in Albany on June 2nd to celebrate the legislation increasing assigned counsel and law guardian rates.

Protecting Children and Families

Improving Child Support Enforcement

Following up on nearly two decades of efforts to ensure that children receive the support they deserve, a number of measures were enacted to improve existing child support enforcement.

Ch. 88 of the Laws of 2003 (A. 7480 - Weinstein, et al) extends state tax department involvement in the collection of child support when support is four or more months in arrears. Since the inception of tax department enforcement in 1996, millions of dollars in support arrears have been collected.

Ch. 81 of the Laws of 2003 (A. 7487 - Titus, Weinstein, Parment) upgrades the title of child support hearing examiners to "support magistrate" in recognition of the integral and important role that hearing examiners pay in the determination and collection of child support.

Ch. 75 of the Laws of 2003 (A. 4095 - Parment, Gunther) extends the term of reappointment of hearing examiners from three to five years.

Unfortunately, another important measure was vetoed. Veto #155 of 2003 (A.7498 - Weinstein, A. Cohen et al) would have expedited confirmation hearings by family court judges where a hearing examiner has found a willful violation of a child support order. In such cases, family court judges must confirm the findings and, if so, impose penalties. The measure attempted to resolve a conflict between Appellate Division decisions which has resulted in a 35 day delay in confirmation hearings in some parts of the State.

Helping Children By Empowering Grandparents and Caregivers

Ch.657 of the Laws of 2003 (A. 8302-B - Green, Weinstein) gives statutory recognition to the unique role that grandparents play in the lives of their grandchildren by expressly providing in the domestic relations law that grandparents have standing to apply to the court for custody rights where they can demonstrate extraordinary circumstances. It affords special attention to those situations in which grandchildren have actually resided in the household of the grandparent.

Unfortunately, the Governor vetoed a bill which passed the legislature to authorize caregivers to consent to school enrollment, school related activities, medical and dental diagnosis and treatment of school aged children who are in their care. Veto # 138 of 2003 (A.4584-C - DiNapoli, et al). Currently, a grandparent or other entrusted caregiver who has no formal legal relationship with a child has no authority to consent to routine childcare decisions.

Legislature Acts To Protect Child Performers

To ensure that child performers receive a good education as well as safeguarding the money they earn, the Legislature this session passed the New York Child Performers Education and Trust Act (Ch. 630 of the Laws of 2003, A.7510-B - Weinstein, John). The Act will better protect child performers from being exploited by family members and employers in the entertainment industry. It requires that fifteen percent of a child performer’s gross earnings be placed in a Child Performer’s Trust to be made available to the child at age eighteen. In addition, where a child actor’s work schedule interferes with school, the employer is required to provide for a certified teacher on the set. The New York State Department of Labor is charged with oversight and enforcement. The new law continues New York’s long history of strong laws to protect children in the workplace. Similar protections have been provided to child performers in California.

Child Performers Education and Trust Act

Judiciary Chair Helene Weinstein and Assemblyman Joseph Morelle, Tourism Chair, are joined by former and current child performers, Denis Hughes, President of the AFL-CIO, and Alan Simon, representing the Screen Actors Guild, who came to Albany to encourage the passage of the "Child Performers Education and Trust Act of 2003."

Relief for Victims of September 11th Terrorist Attacks

Ch. 114 of the Laws of 2003 (A.8021 - Silver) aids relatives of victims of the World Trade Center attacks by lengthening the statute of limitations on bringing wrongful death actions by an additional six months.

Ch. 568 of the Laws of 2003 (A.7356 - Hoyt) permits annuity issuers to waive their compensation for the sale of annuities to the survivors of the World Trade Center attacks.

Assembly Judiciary Committee

The Assembly Judiciary Committee meets regularly during the Legislative session.
The meetings are open to the public. Participating in Committee deliberations are (left to right): Assemblymembers Jonathan Bing, Frank Seddio, Scott Stringer, Jeffrey Klein, David Sidikman, Peter Rivera, Susan John, Chairwoman Helene Weinstein, Stephen Kaufman, Richard Gottfried, Mark Weprin, Jeffrey Dinowitz, Adele Cohen, Michael Gianaris, Michele Titus, and Daniel O’Donnell.

Protecting Victims of Domestic Violence

In 2003, the Legislature passed a number of measures to further safeguard domestic violence victims and their children.

Ch.579 of the Laws of 2003 (A. 8923A - Paulin, Weinstein, Stringer, et al) increased the maximum duration of orders of protection issued by a family court from one to two years. The duration of orders of protection where aggravating circumstances exist was increased from the current maximum of three years to five years. In addition, violation of a valid order of protection will constitute aggravating circumstances. Currently, victims of domestic violence who need continued protection must return to court to extend the order when it expires. This measure will help victims by giving the court greater discretion to issue orders of protection for longer periods of time.

Ch. 261 of the Laws of 2003 (A. 8671 - Rules, Weinstein) extended the law which allows domestic violence victims to go to family court at night to obtain orders of protection without the abuser being present ("ex parte"). It will enable judicial hearing officers and court referees in Bronx and Brooklyn family court night sessions to continue to issue immediate "ex parte" protective orders. Protecting Victims of Domestic Violence

Improving the Effectiveness of Guardians

Ch.632 of the Laws of 2003 (A.8088 - Glick, Weinstein, John, Seddio, Cohen A., Gottfried, Kaufman, Titus, et al) relates to the appointment by an ill parent of a standby guardian for their child in the event of the parent’s incapacity or death. It helps to effectuate the parent’s wishes where the appointment was made in another state or when more than one standby guardian was designated.

Ch. 232 of the Laws of 2003 (A. 8507 - Sidikman ) authorizes not-for-profit guardians for developmentally disabled persons to make decisions to withhold or withdraw life-sustaining treatment to them. This measure was strongly supported by relatives worried about who would make these critical decisions for disabled loved ones who survived them.

Ch. 589 of the Laws of 2003 (A. 7494 - Bing, Weinstein, Seddio) allows for a guardian to renounce a property interest created by a will or trust on behalf of an infant, incompetent, or deceased person.

Additionally, the Judiciary Committee is working to make technical changes to Article 81 of the Mental Hygiene Law to improve the implementation of this statute governing the appointment of guardians for persons who are incompetent to handle their own affairs. (A. 8838 - Weinstein)

Aiding Localities

Ch. 11 of the Laws of 2003 (A.1409 - Weinstein) increases the annual assessment rate of payment by Marshals to New York City.

Ch. 524 of the Laws of 2003 (A.6400A - Tocci) makes technical changes to conform the time periods for the automatic discharge of public liens to the duration of the liens.

Veto # 148 of 2003 (A.497A - Brodsky) Unfortunately, the Governor vetoed an important bill which would have offered additional due process rights to property owners subject to eminent domain condemnation proceedings. It would have required written notice by mail to affected property owners prior to any required public hearing.

Making the Prenuptial Process Easier and More Enforceable

Ch. 595 of the Laws of 2003 (A. 8716 - Rules, Silver, Weinstein, A. Cohen) will permit members of the clergy to act as legal witnesses to the signing of prenuptial agreements. The measure was intended to complement a provision of the state’s existing domestic relations law known as the “Get“ Law which makes it illegal for an individual to place barriers that would prevent a former spouse from marrying again, as a means of extortion. By increasing the likelihood that the prenuptial agreement will be properly witnessed, the new law will eliminate a practical obstacle to the enforceability of prenuptial agreements which seek to remove barriers to remarriage in both civil and rabbinical courts.

Court Operations

Ch. 261 of the Laws of 2003 (A.8671 - Weinstein) extends for two years and four months the pilot program which permits the electronic filing of legal papers in certain cases.

Ch. 601 of the Laws of 2003 (A.5441 - Towns) increases the small claims jurisdiction for the New York City Civil Court, the District Courts and the City Courts outside New York City from $3,000 to $5,000.

Ch. 537 of the Laws of 2003 (A. 7514 - A.Cohen, Weinstein, Seddio, Gottfried, Kaufman) authorizes a defendant to pay any mandatory surcharges and crime victim assistance fees imposed by a court by credit card.

Ch. 644 of the Laws of 2003 (A. 9069 - Gianaris, Weinstein) allows the court clerk to record oral responses of respondents in summary proceedings, such as landlord/tenant actions.

Trusts and Estates Highlights

Ch. 631 of the Laws of 2003 (A.7882 - Seddio) permits a beneficiary who is challenging the validity of a lifetime trust to demand a trial by jury.

Ch. 633 of the Laws of 2003 (A.8090 - Weinstein) permits persons to be trustees of trusts in which they are beneficiaries. This bill allows them to make disburse-ments to themselves without tax consequences as long as it is for health, education or welfare-related expenses.

Ch. 612 of the Laws of 2003 (A.1491 - Seddio) provides a nominated co-fiduciary with standing to file objections to the grant of letters to a co-fiduciary.

Ch. 639 of the Laws of 2003 (A.2609 - Gianaris) updates the rules on prohibited acts by private foundations to account for changes made by Congress to the Internal Revenue Code.

The Assembly also passed a measure to permit owners of securities to register them for transfer-on-death status. (A. 6639 Weinstein). Upon the death of the owner these securities become the property of the beneficiary named on the form so long as the rights of spouses are protected. Unfortunately, this bill did not pass the Senate.

Gideon Day at the State Bar

On March 18th to celebrate the 40th Anniversary of the landmark US Supreme Court "Gideon" decision insuring the right to counsel, Assembly Judiciary Chair Helene Weinstein joined Lorraine Power Tharp, then President of the New York State Bar Association (left), Assembly Codes Chair Joseph Lentol (right) and Senate Judiciary Chair John Defrancisco (second from left) in addressing lawyers from around the state at an event sponsored by the New York State Bar Association.

New York State Assembly Judiciary Committee
Room 831 LOB · Albany, New York 12248 · 518-455-5462

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