Hearing ends on ‘imputed’ income
By: Bennett Loudon//January 12, 2017
Hearing ends on ‘imputed’ income
By: Bennett Loudon//January 12, 2017//
While state Supreme Court Justice Richard Dollinger is requiring a defendant, in one case, to prove that he qualifies for an appointed attorney at no cost, the Fourth Department found that the same man qualifies for an appointed counsel in an appeal of a decision by Dollinger in a related matter.
The circumstances raise questions about the proper method of determining who is entitled to a taxpayer-funded attorney.
On Wednesday, Dollinger held a hearing on the issue of whether Patrick Carney, of Fairport, should get an appointed lawyer. With Carney testifying, Dollinger challenged the relevance of First Assistant Public Defender Jill Paperno’s questions about the appointment of her office to represent Carney in his appeal.
Paperno said that the action by the Fourth Department should be considered alongside all other relevant case law and decisions that he reviewed on the issue.
“No one at the Fourth Department has asked the kind of probing questions I am,” Dollinger told Paperno.
Dollinger said he is entitled to “read the law” as he chooses, although he accepts that his decision could be appealed and overturned.
In April, Carney filed a petition to remove court-ordered restrictions on visitation with his two daughters and he sought sole custody of the girls. In response, the mother, Jun Carney, accused him of contempt of orders already in place, which could lead to jail time, a fine and elimination of any contact with his children.
Dollinger has acknowledged that Patrick Carney is entitled to an appointed attorney on the contempt issue — if he’s indigent — because the case involves the possible infringement of his custodial rights and because he faces the possibility of imposition.
After Dollinger dismissed Patrick Carney’s motion to obtain sole custody, Carney filed a pro se appeal to the Fourth Department and applied for poor person relief and an appointed attorney.
The Fourth Department granted the request and appointed the Monroe County Public Defender’s Office. Assistant Public Defender Timothy Davis is representing Carney in the appeal, which is expected to be argued this spring.
The Fourth Department’s decision was based on a five-page application that Carney got from staff at the Appellate Division offices. Although the Public Defender has reviewed Carney’s financial situation and determined he is eligible, Dollinger wants to inquire further.
The hearing that concluded Wednesday started with a court session on Nov. 17 and lasted a total of about six hours. A decision is not expected for several weeks.
In the hearing, Dollinger wanted Carney to show not just that he can’t afford a lawyer now, but that he also is unable to find a job that will provide an income sufficient to pay for an attorney.
Carney has a master’s degree in mathematics and a bachelor’s degree in micro-electrical engineering and has taught at numerous colleges for short periods.
Carney, who pays no child support and lives with his parents, is currently in a doctorate program for mathematics at the State University of New York at Binghamton.
Carney needed to show Dollinger in the hearing why Dollinger should not “impute” potential income based on his education and supposed skills.
Dollinger temporarily assigned the Public Defender’s Office to represent Carney in the first-of-its-kind hearing and Paperno took on that role.
Attorney Paul Meyer was assigned by Dollinger to argue in favor of allowing Dollinger to impute income. Meyer’s job was to “present the facts that favor imputation of income to the applicant.”
During several hours of testimony, Carney said his current income is $125 a week, which he earns for tutoring two high school students. Carney said he has no plans to seek full-time employment until after he completed his doctorate, hopefully by the end of this year.
Carney said he spends most of his time working on his doctorate and preparing for tutoring sessions.
His last college teaching job was at Monroe Community College in 2007. He started pursuing a doctorate in about 1996 and has been working on it off and on since then.
The last time he applied for a full-time job was in 2007 and the last time he applied for a part-time job was about 2010, he said.