NY Public Defender Tells Defendant to Plead Guilty to a Felony for a Crime that Wasn’t a Felony

The New York Times has a fascinating story that raises some serious questions about the criminal system in this Country and the overall lack of justice that it produces.

Let me begin by saying, as I have in previous blog posts, that I have nothing but respect for the public defender’s office. They are some of the most talented criminal defense lawyers in the state. The problem, of course, is that they are severely overly worked and underfunded. The result is that a public defender simply can not afford the time and resources that may be required for any individual case. The anger should not be directed at the public defender’s office, but at a State that gives prosecutors a budget ten to twenty times that of the public defender’s office. It makes you wonder what our goal really is regarding prosecution.

That said… back to the story. Kimberly Hurell-Harring was never in trouble. She had a tough life of poverty and single motherhood at a young age. Nevertheless, she worked hard, often two jobs at a time to support her children. Her husband, was an inmate in the New York prison system serving eight years. In 2007, at her husband’s urging, Kimberly attempted to sneak some marijuana to her husband during a meeting at the jail. It was only 3/4 of an ounce. She was caught, arrested, and charged with smuggling dangerous contraband into a jail. The judge set bail at 10,000 guaranteeing that a woman of her means would go to jail.

Kimberly sat in jail aware that her crime should never have been considered a felony. Other inmates at the jail warned her about public defenders. One told her that you get what you pay for = nothing!

Kimberly was a nervous wreck awaiting sentencing. She tried to call her lawyer often but was always told that he was unavailable. The New York State Defender’s Association was working on similar cases before the New York Supreme Court arguing that marijuana is not dangerous contraband and should be charged as a misdemeanor, not a felony. The Association called Kimberly’s public defender to tell them that the Supreme Court was going to hear the case. He was not impressed. Soon thereafter, despite the call from the association, the public defender encouraged Kimberly to plead guilty to the felony charges. She was sent to jail.

In the aftermath, Kimberly lost her job and was separated from her children for several months. She and her children had to move to run down housing and survive on food stamps.

Working pro-bono a team of private lawyers went to work on an appeal and aggressively attacked the weaknesses of the case. The end result, the New York Court of Appeals agreed that Kimberly should never have been charged with a felony.

This case, like many others, also raises serious questions about prosecutorial ethics. What is the goal of our criminal system? Is the intent to put as many people in jail for as long as possible? Or is the intent to seek justice and hand out punishment that fits the crime. Too often the answer lies in the former. Why would the prosecutor consistently jump to the highest possible charge for these offenses rather than treat them reasonably as a misdemeanor? Why would they not reduce the charges knowing that the Supreme Court was about to consider the issue?

What are the lessons to be learned from a story like this…. Criminal defendants should know that the AG’s office is not on their side. A person arrested for a felony or misdemeanor should also know that only a private attorney can invest the time and resources that are necessary to obtain the best result for your case. Do not let yourself become a victim of a system that does not care about you and which was not designed to protect the innocent.


My office handles a variety of misdemeanor and felony defense cases. If you have been arrested and charged with a crime contact my office right away so that we can begin working on your defense. Even if you qualify for the public defender’s office, consider the decision. A private attorney can do much more for you than the overworked public defender’s office.