People v. Czechalenka , 22 N.Y.S.2d 145 ( 1940 )

Cooke, J.

This is an application by defendant’s attorney for an order directing the county treasurer of Sullivan county to pay him the sum of $375 for his services rendered in connection with the prosecution of an appeal from the judgment of conviction in the County Court.

Section 606 of the Correction Law is as follows:

“ State to pay expenses of trial of prisoners committing crime in correctional institution. 1. "Whenever any prisoner in any of the State prisons of this State shall be indicted and tried for any offense committed by such prisoner during the time of his imprisonment in any State prison in this State, the expenses of such trial shall be paid by the State.

“ 2. In case of the disposition of any indictment, other than for murder in the first degree, against any defendant at the time confined in a State prison of this State for an alleged offense committed by him while so confined, upon which the defendant is without an attorney and, being destitute of means to procure one, has requested the assignment by the court of an attorney to advise him as to his defense, the court or trial judge so assigning an attorney shall, upon disposition of the case by plea or verdict, fix by order a reasonable amount for the compensation of such attorney at a rate not to exceed twenty-five dollars per day for the time such attorney is actually and necessarily occupied. There shall in the same manner be fixed the compensation of such attorney after any further separate trial following a conviction, to determine the number of previous convictions of the defendant for the purpose of fixing the extent of the punishment to be imposed. The amount so fixed shall be paid by the county treasurer of the county where such assignment was made, and the amount so paid shall be a proper charge by such county against the State of New York and shall be reimbursed by the State of New York to such county so paying, upon proper vouchers therefor as hereinafter provided.”

This is the authority for an order for the court or trial judge to fix a reasonable amount for the compensation of such attorney not to exceed twenty-five dollars per day for services in that court. Compensation for services rendered by the attorney on the trial were fixed by an order of the court and said sum was paid. Section 308 of the Code of Criminal Procedure provides, in a case where the offense charged is punishable by death, for the payment of services of defendant’s attorney, when assigned by the court, which services are rendered at the trial or on appeal. This section of the Correction Law does not provide for the payment of services of an attorney rendered on appeal. Defendant was not indicted for a crime punishable by death. Any pay he receives is paid under said section 606 of the Correction Law, It cannot be said that it is reasonably contemplated in that section that the county judge has any authority to fix an amount for attorney services rendered on appeal from the judgment of the County Court.

There does not appear to be any authority for this court to make the order requested.

The application is, therefore, denied.