C. Determination as to Who is Indigent, and Entitled to
Services
The judiciary has the authority to determine
whether a defendant who has been indicted is indigent
and eligible for representation by the Office of the Public
Defender. N.J.S.A. 2A:158A-14 et seq. Eligibility for the
services of the Office of the Public Defender shall be
determined on the basis of the need of the defendant.
Among the factors to be considered are defendant’s
employment, liquid assets and income from all sources.
It should be noted: “Indigence is not equivalent to total
destitution.” In re Request of Evelyn Berman Frank for
Public Defender Representation, 276 N.J. Super. 269, 281
(App. Div. 1994), quoting from Barry v. Brower, 864
F.2d 294, 299 (3d Cir. 1988). In Frank, the court held
that a woman living with her daughter, but without
assets and heavily in debt, could still be deemed indigent
according to the statute.
N.J.S.A. 2A:158A-15.1 provides that in each
county, the Assignment Judge shall designate a judge or
court support officer who shall make the determination
on each request by defendant for an appointed attorney.
A determination to grant or deny the services of the
Public Defender shall be subject to final review by the
Assignment Judge or his designated judge. The court, in
its discretion may ask for the assistance of the Public
Defender in conducting the investigation.
D. Individuals Entitled to Public Defender Services
Both juveniles and individuals charged with
disorderly persons offenses are to be represented by
public defenders. N.J.S.A. 2A:158A-24; N.J.S.A.
2A:158A-5.2.
E. Appeals (See also, APPEALS, this Digest)
Although there is no constitutional right to an
appeal, Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585,
590, 100 L.Ed. 891, 898 (1956), once a right to appeal
is provided, that right must be protected in a non-
discriminatory fashion. Therefore, an indigent
defendant has a right to counsel on direct appeal. Douglas
v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 816, 9
L.Ed.2d 811, 814 (1963). See, Evitts v. Lucey, 469 U.S.
387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); State v.
Coon, 314 N.J. Super. 426, 438 (App. Div. 1998). State
v. Bianco, 103 N.J. 383, 391 (1986), rejected a claim of
denial of equal protection insofar as a subclass of indigent
defendants were being denied full review, since the
classification of cases included in the Excessive Sentence
Oral Argument program was rationally related to a
legitimate state interest in clearing the inordinate delays
in appellate review.The right to counsel for indigents does not extend to
discretionary appeals, beyond the first appeal of right,
however. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437,
41 L.Ed.2d 341 (1974). See, Pennsylvania v. Finley, 481
U.S. 551, 108 S.Ct. 1990, 95 L.Ed.2d 539 (1987)
(indigent defendant has no federal constitutional right to
appointed counsel when attacking conviction in post-
conviction proceedings).F. Ancillary ServicesN.J.S.A. 2A:158A-5 provides in part that “all
necessary services and facilities of representation
(including investigation and other preparation) shall be
provided in every case.”In a trilogy of cases, the Supreme Court of New Jersey
has held that the Public Defender has an obligation
under the Public Defender Act to pay for necessary
ancillary services, such as expert defense witnesses and
trial transcripts, for indigent criminal defendants even
though they are represented by private attorneys retained
by the family or by pro bono attorneys. See Matter of
Cannady, 126 N.J. 486 (1991); Matter of Kaufman, 126
N.J. 499 (1991); State v. Arenas, 126 N.J. 504 (1991).
Therefore, it follows that even if an indigent defendant’s
family or friends may have provided some of the expenses
incident to defending a criminal matter, this would not
make the indigent criminal defendant ineligible for
Public Defender representation. See also, In re Request of
Evelyn Berman Frank for Public Defender Representation,
276 N.J. Super. 269, 282, n.2 (App. Div. 1994); State v.
Morgenstein, 147 N.J. Super. 234 (App. Div. 1977), rev’g
141 N.J. Super. 518 (Law Div. 1976)(indigent
defendant entitled to transcript of trial prepared for use
on appeal).An interpreter is another example of an additional
service. “As with other necessary costs of a criminal
defense, a defendant is entitled to have the State pay for
an interpreter if he is unable to afford one.” State v.
Guzman, 313 N.J. Super. 363, 378 (App. Div. 1998).
See also, State v. Kounelis, 258 N.J. Super. 420, 426 (App.
Div. 1992). If a defendant is unable to understand court
proceedings without an interpreter, the court must
inquire through the court interpreter whether he can
afford his own interpreter, and if he cannot, the court
must appoint one for him. State v. Kounelis, 258 N.J.
Super. at 426. See also, State v. Manning, 234 N.J. Super.