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Court: Assigned counsel should be compensated

An Onondaga County assigned counsel program must pay an attorney who helped defend an accused murderer in a high-profile Syracuse case.

The Appellate Division, Fourth Department, has decided Fifth Judicial District Administrative Judge James C. Tormey overstepped his bounds in his review of an Onondaga County Court decision to pay attorney Todd M. Smith.

Smith, who is in private practice in Syracuse, asked the appellate division to annul Judge Tormey’s review of his fee award of some $31,000. His petition was unanimously granted on the law without costs.

“I’m happy that it turned out the way it was supposed to turn out,” Smith said Tuesday. “I think the decision says all that needs to be said.”

Smith was co-counsel with attorney Charles A. Keller on the Stacey Castor murder case.

A jury, following a trial that lasted more than three weeks, found Castor guilty Feb. 4, 2009 of second-degree murder, attempted second-degree murder and first-degree offering a false instrument for filing.

Jurors agreed Castor intentionally poisoned her husband, David Castor, with antifreeze in 2005 and two years later tried to kill her daughter, Ashley Wallace, and blame her for killing her stepfather and her father, Michael Wallace. The third charge was for altering David Castor’s will to exclude his son from a previous marriage.

Castor is also suspected of killing Michael Wallace with antifreeze in late 1999 until his death in early 2000, but has not been charged. Wallace’s death was originally ruled a heart attack until suspicions grew surrounding the death of David Castor. Wallace’s body was exhumed and it showed traces of antifreeze in his system.

Castor was arrested in September 2007. Keller had originally been retained by Castor. Smith, according to court documents, agreed to assist, given the complex nature of the case.

At the time, Smith was not on a panel list of the Onondaga County Bar Association Assigned Counsel Program, a not-for-profit corporation responsible for providing legal services to indigent people in Onondaga County.

After Castor ran out of money during pre-trial proceedings, Keller was appointed her assigned counsel and Smith continued to serve as co-counsel. Smith had applied to be placed on the ACP list panel list for misdemeanors, which was granted. He was placed on the ACP panel list for felonies two weeks after the Castor verdict.

After the trial, Onondaga County Court Judge Joseph E. Fahey ordered Smith to “continue to represent [Castor] at county expense … until the matter is completed.”

Smith requested ACP compensate him for his services and also submitted an affidavit of extraordinary circumstances seeking compensation in excess of the statutory maximum. ACP said Smith was “off panel” and denied his request. The ACP’s executive committee affirmed and Smith took his matter to county court, requesting fees in excess of the statutory limits for assigned counsel. His motion was opposed by the county and ACP.

Judge Fahey granted Smith’s request and ordered ACP to compensate him from the time he was first included on the ACP panel list through the conclusion of the criminal proceeding.

The county and ACP then requested that an administrative judge review the county court’s order. Judge Tormey granted their application, ruling Smith “never timely applied to be appointed for ACP nor was he qualified to be appointed by ACP as a second-seated counsel.”

Judge Tormey, according to the decision, also noted it was not within county court’s purview to appoint a person that is not on the ACP panel so there was no authority to award any fees and that the award of any fees would have been “excessive.”

The appellate division, in its April 1 decision, noted Judge Tormey concluded he had the authority to review compensation and rejected Smith’s contention that administrative review should be limited to “review of payments for extraordinary circumstances only.”

“That was error,” the decision stated. “Thus, under the plain language of the rule, an administrative judge’s authority is limited to modifying an excess compensation award if the amount awarded is determined to be an abuse of discretion.”

The higher court agreed with Smith that Judge Tormey exceeded his authority and was only allowed to review an order of trial judge “with respect to a claim for compensation in excess of statutory limits.”

The appellate division also ruled that the annulment of Judge Tormey’s review made it unnecessary for the higher court to rule on Smith’s second request that Judge Fahey’s order be followed.

“Rather, the county and/or ACP should have commenced a CPLR Article 78 proceeding seeking a writ of prohibition on the ground that county court was acting in the absence or in excess of its jurisdiction pursuant to county law …or should have sought leave to appeal from county court’s order,” the decision said.

The appellate division further notes that the county and ACP failed to do and the time within which to do so has expired, therefore concluding “that the county and ACP are bound by county court’s order and that relief in the form of mandamus is unnecessary.”

The presiding justice on the matter was Erin M. Peradotto. Agreeing with her are justices Stephen K. Lindley, Rose H. Sconiers and Salvatore R. Martoche.

Smith was represented by Gary H. Collison of The Collison Law Firm in Liverpool.

Judge Tormey was represented by attorney Frank Brady from the office of Attorney General Eric T. Schneiderman.

“We’re reviewing the decision,” said Jennifer Givner, an AG spokeswoman.

The county and Assigned Counsel Program were represented by Jonathan B. Fellows of the Syracuse office of Bond, Schoeneck & King PLLC.

Castor was sentenced to two 25-year terms to be served consecutively on the murder and attempted murder counts and one and a third for the false filing. She is housed at Bedford Hills Correctional Facility in Westchester County. She is not eligible for parole until 2055.