Judge denies appointed counsel over imputed income

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Acting state Supreme Court Justice Richard A. Dollinger has decided that a well-educated but unemployed man facing jail time for contempt in a child custody case does not qualify for an appointed counsel because he has the potential to earn enough money to pay for his own lawyer.

In the 42-page decision released Friday, Dollinger listed several good-paying jobs for which he claims Patrick Carney is qualified, such as engineer, actuary, school teacher.

“This court imputes $50,000 as income for which the respondent in this instance is well-qualified and which, with a modicum of effort, he could easily obtain,” Dollinger wrote.

“Having concluded that the respondent has imputed income of $50,000 annually, this court holds that he is not eligible for the appointment of counsel,” Dollinger wrote.

The Monroe County Public Defender‘s Office, which was temporarily appointed to represent Carney while the issue is addressed, is expected to appeal Dollinger’s decision.

According to New York state Indigent Legal Services guidelines, anyone whose income is within 250 percent of the federal poverty guideline (FPG) would be eligible for appointed counsel. In Rochester, FPG is about $12,060 for a single person.

Dollinger wrote in the decision that the practice of imputing income for Carney is appropriate because a similar process is used to impute income of parents in family support matters.

“In those cases, parents, with obligations to support their spouse and family, argue against imputation, claiming that they do not then have the available income to pay family support, even though the courts found that they had the capability to earn and pay more,” Dollinger said.

“The court must balance the right to counsel versus the scarce public resources necessary to finance that appointment and whether the applicant has the capability to generate sufficient income to retain counsel,” Dollinger wrote.

In April 2016, 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.

Dollinger conducted a hearing that lasted a total of six hours on Nov. 17 and Jan. 11 where Carney had the burden of proof to show that he can’t afford a lawyer and is unable to find a job where he would make enough money to pay for an attorney.

Carney, 47, 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 hearing and First Assistant Public Defender Jill Paperno took on that role.

Attorney Paul Meyer was assigned by Dollinger to argue in favor of allowing Dollinger to impute income.

Carney’s ex-wife chose not to participate in the hearing.

Paperno noted that Dollinger previously appointed a public defender to represent Carney in an earlier phase of the case, but Dollinger rejected that argument.

“There has previously never been an inquiry into the respondent’s eligibility either by this court or Family Court. And the fact that this court did not perform an inquiry earlier does not preclude its performance of the statutorily required inquest now,” Dollinger wrote in his decision.

The Public Defender also pointed out that a public defender was appointed to represent Carney before the Appellate Division of state Supreme Court, Fourth Department, in an appeal of another decision by Dollinger.

Dollinger said he was not familiar with the criteria used by the Appellate Division in determining indigent status, but Carney did not introduce any evidence of his application to the Fourth Department.

Dollinger said he visited the Fourth Department’s website and downloaded the application for appointed counsel, which requires a sworn statement of the applicant about their financial status, but there is no requirement for documentation.

“It appears that there is no review of the applicant’s statement and, based on the document, no indication that anyone at the Appellate Division inquires about the accuracy of the applicant’s disclosures,” he wrote.