
    In the Matter of Abraham Werfel, Appellant, v Thomas S. Agresta, as a Justice of the Supreme Court, Queens County, Respondent.
    Argued April 29, 1975;
    decided June 9, 1975
    
      
      Abraham Werfel, appellant pro se.
    
    
      Louis J. Lefkowitz, Attorney-General (Robert S. Hammer and Samuel A. Hirshowitz of counsel), for respondent.
   Per Curiam.

The Appellate Division was correct in concluding that, in a full-fledged judicial proceeding, it lacked subject-matter jurisdiction and that, moreover, the petition fails to state a claim for relief under CPLR article 78.

The assignment and compensation of counsel in criminal matters under sections 722 and 722-b of the County Law, and the plans adopted pursuant to statute do not, for purposes of review, fall within either civil or criminal proceedings as the practice statutes are structured. Fixing compensation for assigned counsel pursuant to the statute is one of numerous responsibilities of courts and Judges. These responsibilities might be characterized as "administrative”. They are, however, internal to, and performed entirely within the context of, the judicial offices involved. They are not concerned with the performance of an adjudicative function or an administrative responsibility external to the management of the courts or the litigation in them.

If the matter were considered as arising within a criminal action, the most likely classification, then no mode of appeal or review is provided (CPL 450.10, 450.15). In that connection CPL 1.20, in subdivision 18, expressly provides that a criminal proceeding means "any proceeding which (a) constitutes a part of a criminal action or (b) occurs in a criminal court and is related to a prospective, pending or completed criminal action”. The application for an allowance was, of course, made in a completed criminal action. If it were otherwise, that is, civil in character, there would still be no judicial mode of review, under the opening paragraph of CPLR 7801, in the proper sense of that term. CPLR 7801 (subd 2) precludes the kind of determination petitioner seeks, which is, in effect, to obtain a higher allowance than he was awarded by respondent in a criminal action. However characterized, the ultimate reality is that petitioner challenges a determination in a criminal action.

Moreover, CPLR 7806 precludes the award of damages except as incidental to relief proper to a proceeding under the article (cf. CPLR 7801).

Finally, plans under sections 722, 722-a and 722-b of the County Law are designed to ease the burden of lawyers who serve in assigned capacities in the representation of indigent criminal defendants. The lawyers who participate do so willingly, in the highest traditions of the profession, knowing that the limited fees provided fall short of full, or even fair, compensation for their services (People v Perry, 27 AD2d 154, 158). In so participating, the lawyersundertake an important public service, which before the statute was enacted, they performed without any compensation at all (id.). Petitioner’s own services were performed vpluntarily, with high competence and with complete success on behalf of his client. Those services exemplify the purpose of the statute and the tradition of the profession.

But it is quite evident that the plan, the statute, and the manner of its operation provide no basis for justiciable review of allowances to counsel made within the maximums provided by the statute (Matter of Fisher v Schenck, 39 AD2d 813; cf. People v Perry, 27 AD2d 154, 156, 162, supra; see, also, Matter of Snitkin v Taylor, 276 NY 148, 153). Notably, under the former Code of Criminal Procedure, fee allowances to assigned counsel were not subject to judicial review (§ 308; see People v Diehl, 286 App Div 1150). It is of course irrelevant that in other contexts statutes provide expressly for review of fee allowances to counsel, assigned or otherwise (e.g., Family Ct. Act, § 245, subd [b]; Judiciary Law, § 474).

This is not to say, however, that one situated like petitioner is not entitled to adjustment of the allowance made to him by application through the several layers of judicial administration, that is, to the appropriate Administrative Judges and even to the Administrative Board of the court system.

Accordingly, the judgment, denominated an order, of the Appellate Division dismissing the petition should be affirmed, without costs.

Jones, J. (dissenting).

In my view it was error for the Appellate Division to conclude that it had no jurisdiction to entertain this article 78 proceeding.

Petitioner as assigned counsel in a criminal action made an application to the trial court for compensation under section 722-b of the County Law. The Trial Judge made an allowance with which petitioner was not satisifed. Petitioner then instituted the present proceeding under CPLR article 78 for judicial review of the Judge’s determination. In my view in fixing petitioner’s compensation the Judge was acting in an administrative rather than a judicial capacity. True, the determination was related to the particular criminal action in which the services had been rendered, but the determination had no effect on the parties to that action, determined no rights therein, and was legally independent thereof.

Petitioner’s application for review is not precluded by any of the three limitations of CPLR 7801. Since the allowance granted petitioner was below the statutory maxima no procedures were available for administrative review of the allowance, as, by contrast, would have been available had the amount fixed been in excess of such maxima (see People v Perry, 27 AD2d 154, 162). Thus the Judge’s determination was final. Secondly, the determination could not be adequately reviewed by appeal since remedy by way of appeal does not lie (Matter of Fisher v Schenck, 39 AD2d 813). Finally, the determination was not "made in a civil action or a criminal matter”. (Cf. Matter of Peck v Stone, 32 AD2d 506.)

Nor does the application contravene the traditional inhibition that article 78 proceedings do not lie for the recovery of money damages except as provided in CPLR 7806. Petitioner here seeks a review of the determination of the amount to which he is entitled, not an order directing its payment. Indeed the court would have no jurisdiction in any event to enter such an order. Surely payment is not to be made by the respondent personally, and he is the only other party to the proceeding; the City of New York, the eventual payor, is not a party.

I would therefore conclude that the Appellate Division had jurisdiction to entertain this article 78 proceeding. On the other hand, whether in the exercise of its discretion it should entertain such a proceeding in these circumstances, and what might be the extent of what I would conceive to be a very limited scope of review were such proceeding to be entertained (if indeed it can be said that the Legislature intended that there be any judicial review of allowances under § 722-b), are discrete issues which are not before us on the present appeal.

Chief Judge Breitel and Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur in Per Curiam opinion; Judge Jones dissents and votes to reverse in a separate opinion in which Judge Cooke concurs.

Judgment affirmed.  