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TexLaw, Attorney
Category: Legal
Satisfied Customers: 4430
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I am a 100% disabled Marine living soley on 491.00/month of

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I am a 100% disabled Marine living soley on 491.00/month of SSI. I have a knee injury and both shoulders have severe tendon damage and arthritis. These physical problems cause chronic pain. I am also suffering from PTSD, sever depression, generalized anxiety disorder and insomnia. I am currently prescribed 40Mg of oxycodone/day (schedule II controlled substance) for pain and 1Mg of Lorazepam as needed for anxiety (schedule IV cntrolled substance).

Due to a lack of financial means I have been forced to represent myself pro se in a civil suit filed against me by the NYS Attorney General. I basically own nothing and have no future earning potential. I have been advised by a former attorney that I am "judgement proof". Both the plaintiff and the court have been advised of my physical and mental disabilities and of my prescribed medications. Despite this I was required to proceed to trial. I am now completing my conclusions of fact and law to submit to the court.

It is my understanding that in NY an individual with any amount of oxycodone or a benzodiazapine in their systems is considered legally impaired.

Would forcing me to represent myself in court while legally impaired be a solid basis for a motion to request a new trial and or a violation of my civil or constitutional rights?

Thank you for your questions and I'm sorry to hear about your situation. In order to answer your question, I'm going to have to read through some New York Law and New York cases. This may take some time, but I wanted you to know that we are addressing your question and will get back to you shortly with an answer.

Thank you for your patience.

Have you requested a counsel be appointed to you by the court based on your indigent status?
Customer: replied 4 years ago.

In NY state only criminal cases are entitled to court appointed counsel. Some larger cities i.e. NYC have programs that are independently funded to provide counsel for indigents involved in civil cases. In our rural area no such programs exist.

I agree, however, A person under a disability in New York has the right to be represented by an attorney who is appointed that person's guardian ad litem is the person is truly incompetent to testify.

Have you made any requests at all to the court to appoint an attorney because you feel you are incompetent to represent yourself because of your medical conditions? Or have you told the court you are able to go forward?

Customer: replied 4 years ago.

Yes, I requested counsel at numerous points in the proceedings, I was advised that I was entitled to counsel but would have to pay for counsel myself.


I repeatedly informed the court verbally, in writing and with lewtters from my medical doctor and treating physcologist (during discovery, during depositions etc.) that I was not physically or mentally prepared to represent myself.


In each case my requests were overuled or denied.

Thank you for your response.

In Lassiter v. Department of Social Services, the US Supreme Court held that a person does not have a right to appointed counsel where there is no threat that the person may be sent to jail as a result of the lawsuit.

However, a court is not supposed to allow you to testify if you are not in fact competent to testify. New York case law states the following:
“With respect to witnesses, the term [competency] refers to the eligibility of a witness to testify" (Barker and Alexander, 5 N.Y.Prac., Evidence in New York State and Federal Courts § 6:7 [2005]). Whenever the issue of competency arises, it is the trial judge alone who determines the question based on their inherent authority to examine the witness (People v Parks, 41 N.Y.2d 36, 46, 390 N.Y.S.2d 848, 856, 359 N.E.2d 358,366 [1976]). "It is the trial judge who has the opportunity to view the witness, to observe manner, demeanor and presence of mind, and to undertake such inquiries as are effective to disclose the witness' capacity and intelligence" (Id. at 46, 390 N.Y.S.2d 848, 359 N.E.2d 358]). This includes taking testimony from the witness' doctor to [***8] ascertain whether the witness is capable of testifying (Id.). A witness must be free of characteristics which would prevent him from giving testimony before a Court of law (Barker and Alexander, 5 N.Y.Prac., Evidence in New York State and Federal Courts § 6:2 [2005]).”

Naso v. 1994 BA Leasing Corp., 13 Misc. 3d 1230(A), 1230A (N.Y. Sup. Ct. 2006)

N.Y. C.P.L.R. 1201, 1202, 1203 mandates that certain individuals shall not appear on their own before the court.

N.Y. C.P.L.R. 1201 provides three categories of persons who shall appear by a guardian ad litem: (1) certain infants, (2) certain adjudicated incompetents or conservatees (now, certain persons who have had guardians of their person and/or property appointed), (3) or an individual who is an adult incapable of adequately prosecuting or defending his or her rights.

Where the affairs of an incompetent veteran are brought within the purview of the Supreme Court, that court has a duty placed directly on it to protect and preserve his property, and where necessary or proper a guardian ad litem may be designated to appear for and take such proceedings as are necessary to protect the interests of the incompetent. In re Becan (1966, 1st Dept) 26 App Div 2d 44, 270 NYS2d 923.

You have indicated that you raised this point multiple times with the court. The standard is the judge’s discretion on whether or not he thought you were unable to testify. Just because you are on high levels of pain medication does not automatically mean you are not able to testify.

Your point regarding the law finding a legal impairment if there is over a certain amount of medication in your system is a strong argument in your favor that the judge abused his discretion by not appointing you with an attorney ad litem and forcing you to continue to testify and to represent yourself.

This is thus the essential issue. Did the judge abuse his discretion under NY CPLR 1201.
Is it a solid basis for a motion for new trial? Yes.

It is also a solid basis on which to launch an appeal.

That being said, to overturn a ruling based on the judge's discretion is incredibly difficult. I say that not to discourage you, but so that you know that the standard will be very high to overturn the judge's ruling that you were in fact competent to stand trial and testify.

Please let me know if you have further questions. Please also consider rating my answer positively so that I am compensated for my work by the website.

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