(dissenting). I respectfully dissent and would grant the petition.
This proceeding challenges the plan of respondents Mayor Bloomberg, his Criminal Justice Coordinator (CJC) and the City of New York to make changes to the indigent defense system in New York City that has been in place since 1965. The core of the dispute is the manner in which the City proposes to assign so-called “conflict cases” — cases in which the primary provider at arraignment (The Legal Aid Society or another legal aid organization) is unable to accept representation due to a conflict of interest. Until recently, conflict defense counsel have been appointed through panels of individual attorneys created and administered by the County Bar Associations, Assigned Counsel Panels commonly referred to as 18-B Panels. However, in January 2010, the City revised title 43 of the Rules of the City of New York by adding chapter 13, which provides that in the case of a conflict, counsel may be appointed from either Assigned Counsel Panels or from one of the legal aid providers.
Subsequent to the commencement of this proceeding, through discovery and representations made at oral argument, it has become evident that the City’s ultimate goal is to have Legal Aid serve as the primary provider of conflict defense counsel. Petitioners claim that the City’s new plan violates County Law § 722 and Municipal Home Rule Law § 11 (1) (e). I agree.
County Law § 722 was originally enacted in 1965. It directed the City to place in operation a plan for providing counsel to persons charged with a crime who are unable to afford their *109own lawyers. The plan is subject to the requirement that the City provide for legal representation through one of four alternatives set forth in the statute (see County Law § 722).
Those alternatives, as they are set forth in the current version of County Law § 722, which was amended in June 2010, are: (1) a public defender; (2) counsel furnished by a private legal aid bureau or society, such as the Legal Aid Society (intervenor-respondent in this proceeding); (3) counsel furnished pursuant to “a plan of a bar association” whereby “the services of private counsel are rotated and coordinated by an administrator” (18-B Panels) or “such representation is provided by an office of conflict defender”; or (4) any combination of the foregoing options (see County Law § 722 [l]-[4]). The statute further provides, with respect to the appointment of conflict counsel, that where the city has not placed in operation a plan conforming with subdivision (3) or subdivision (4) of County Law § 722 and a judge “is satisfied that a conflict of interest prevents the assignment of counsel pursuant to the plan in operation,” the judge may assign any attorney (§ 722 [4]).
In 1965, then-Mayor Wagner issued New York City Executive Order No. 178, by which the City established an indigent defense plan that was a Combined Option Plan pursuant to County Law § 722 (4). In conjunction with the issuance of Executive Order No. 178, the county bar associations (County Bars) and the Association of the Bar of the City of New York devised the bar plan component (the 1965 Bar Plan) of the Combined Option Plan. Under the Plan, Legal Aid was designated as the primary provider of indigent defense services in the City’s criminal courts (pursuant to County Law § 722 [2]), and a procedure was established for using panels of private attorneys (18-B Panels) where the court determined that counsel other than Legal Aid was required either because there was a conflict or for any other good cause, or because the crime charged was punishable by death or life imprisonment (pursuant to County Law § 722 [3]).
In January 2010, the CJC revised title 43 of the Rules of the City of New York to add chapter 13. The new chapter included a provision that specifically provided for the City’s direct appointment of “alternate providers” for the provision of conflict defense services, as “selected by the CJC through the City’s procurement process” (43 RCNY 13-03). Respondents issued a Request for Proposals (REP) by which the CJC proposed to award contracts for the provision of representation in conflict *110cases (a role then solely served by the 18-B Panels). Subsequently, the Mayor issued New York City Executive Order No. 132 of 2010, which repealed Executive Order No. 178 (the 1965 order establishing the Indigent Defense Plan) and promulgated a new system for the provision of indigent defense counsel.
Significantly, while Executive Order No. 132 indicated that respondents intended to continue with the Combined Option Plan, using elements of both County Law § 722 (2) and (3), a second addendum to the RFP issued by the CJC contemporaneously with Executive Order No. 132 indicated to the contrary.1 The second addendum provided, as relevant here:
“As may be seen, section 722 provides four alternative means that may be chosen by a locality for the provision of indigent legal services. One of those alternatives, set forth in subdivision three, is the adoption of a bar association plan for the rotation of legal services among private counsel. However, the City is in no way required, in formulating its plan for indigent legal services, to conform to the alternative provided in subdivision three.
“The City’s current plan for indigent legal services, set forth in Executive Order No. 132, and in chapter 13 of Title 43 of the Rules of the City of New York, conforms to subdivision two of section 722, which provides for legal representation in criminal proceedings by ‘a private legal aid bureau or society designated by the [City].’ This is entirely in accordance with the requirements of section 722. The City’s previous plan for the provision of indigent legal services, explicitly repealed by Executive Order No. 132, relied on services provided pursuant to the plan of a local bar association. That plan is no longer in effect” (emphasis added).
Petitioners commenced this proceeding seeking declaratory and injunctive relief pursuant to CPLR article 78 in June 2010. They alleged, among other things, that due to respondents’ abandonment of the 1965 Bar Plan and decision to rely solely on County Law § 722 (2), respondents had automatically shifted responsibility for the provision of conflict counsel from 18-B Panel attorneys to individual attorneys assigned by the judi*111ciary pursuant to County Law § 722 (4), because, by operation of the statute, where there is no Combined Plan (under section 722 [4]), or plan solely under County Law § 722 (3), assignment of conflict counsel is the responsibility of the judiciary.
The City, apparently realizing that in order to claim it had a Combination Plan it would have to repeal the revocation of the 1965 Bar Plan, acted to resurrect the Bar Plan by issuing New York City Executive Order No. 136 of 2010, entitled “Repeal of Prior Executive Orders Relating to the Indigent Defense Plan for the City of New York.” Executive Order No. 136, the repeal of the revocation, provides, in pertinent part, that whereas the CJC had promulgated rules (set forth in chapter 13 of title 43 of the Rules of the City of New York) that established a plan for representation of indigent defendants,
“Executive Order No. 132 of 2010 and Executive Order No. 118 of 2008,2 both entitled ‘Indigent Defense Plan for the City of New York,’ are hereby repealed. Further, Executive Order No. 178 of 1965, entitled ‘Furnishing Counsel to Indigent Criminal Defendants Within the City of New York,’ is hereby repealed, except that Criminal Defense Panels created under the authority of Executive Order 178 of 1965 and pursuant to the plan submitted by bar associations in accordance with subdivision 3 of section 722 of the County Law shall continue to exist and shall be administered in accordance with the rules of the Appellate Division, First and Second Judicial Departments” (emphasis added).
Notably, under the purported “Bar Plan” that the City argues has been incorporated into its new plan, the 18-B Panel attorneys are no longer the designated conflict counsel, as they were under the 1965 Bar Plan. While Executive Order No. 136 retains the Criminal Defense Panels created in 1965 “pursuant to the plan submitted by bar associations,” the “Bar Plan” described by chapter 13 was formulated by respondents, not by the bar associations.
The City’s Bar Plan is markedly different from the version devised and approved by the County Bars in 1965. Petitioners stress that the County Bars were all signatories to the 1965 Combined Option Plan and the 1965 Bar Plan, and that they *112have not agreed with the recent effort by the City to modify the 1965 Bar Plan component of the Combined Option Plan. In fact, the County Bars have expressly objected to the alleged “Bar Plan” and to the City’s attempt to unilaterally use fragments of the 1965 Bar Plan while discarding significant aspects of it in an effort to create a Combined Option Plan.
While the majority minimizes the differences between the original 1965 Bar Plan and the “Bar Plan” currently proposed by the City, the differences are material. For example, the County Bars’ original 1965 plan provides that The Legal Aid Society is to be the primary provider of representation and 18-B Panel attorneys are to be conflict counsel. The 1965 plan does not permit the City to assign conflict cases to institutional providers — all conflict cases are to be assigned to 18-B Panel attorneys. The new plan states that the City will make direct appointment of conflict counsel, which will be alternative providers selected through a procurement process (43 RCNY 13-03). This is clearly a sea change, not merely a rational supplement to the original 1965 plan as found by the majority, and is proof alone that the City’s plan is not the 1965 Bar Plan.
The majority quotes from a decision issued in New York County Lawyers’ Assn. v Bloomberg (2011 WL 4444185, 2011 US Dist LEXIS 112929 [SD NY 2011]), where, in dismissing causes of action brought by plaintiffs for violations of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution based on lack of standing, Judge Batts wrote that the only actual change under the City’s plan is that conflict cases are no longer automatically assigned to the 18-B Panels, and that there are no other changes to the rights and responsibilities of the County Bars with respect to the administration of the Panels. I disagree with Judge Batts’s assessment that this is the only change.
While the County Bars’ original 1965 plan provides that the judiciary is to decide whether a conflict exists, under the City’s plan, the institutional provider has the authority to accept or decline a representation. The majority is incorrect in stating that the 1965 Bar Plan did not contain a provision regarding the supervision of conflict determinations. The 1965 Bar Plan states as follows:
“I. The Legal Aid Society
“Under this Plan, whenever a determination has been made by a court that a defendant is entitled to *113representation under Article 18-B of the County Law, the court shall designate and appoint the Attorney-In-Charge of the Criminal Courts Branch of the Legal Aid Society as the attorney of record for the defendant in all cases, unless:
“1) the court deems the assignment of other counsel to be required in the interest of justice because of either a conflict of interest or any other good cause, in which event the court shall appoint counsel to be designated by the appropriate Administrator from the appropriate panel as hereinafter provided . . .
The City’s plan substitutes institutional providers for some 18-B Panel lawyers, and transfers the authority to decide whether a conflict exists from the judiciary to the institutional providers. This is a considerable change in the way conflicts are handled.
Furthermore, the City’s plan changes the management structure of the Bar Panels. Under the 1965 Bar Plan, each bar association submits a list of qualified attorneys to an administrator or administrators appointed by the First and Second Departments, and upon receipt of the list, the administrator prepares panels from which assignments are made. The City of New York’s only involvement in the management of the panels is that it pays the salaries of the administrators and staff. The City’s plan creates an “Office of the Assigned Counsel Plan” (OACP), which is an office of the City, “responsible for management of the City’s Criminal Defense Panels” (43 RCNY 13-01).
While the City and Legal Aid point out that the City’s plan calls for the continued involvement of administrators from the First and Second Departments in that the OACP is overseen by two administrators in consultation with the Presiding Justices of the First and Second Departments, the salient point is that there were no provisions under the 1965 Bar Plan — the only Bar Plan that was formulated and approved by the County Bars — for an office of the Mayor to oversee the panels. I note that the majority has adopted the opinion expressed by the City in its brief that the City’s plan to oversee this process is designed to avoid favoritism and nepotism, and observe that the majority is engaging in the type of merit review of the plan that it emphasizes is not the province of this Court.
Additionally, the City’s plan does not include any provision for the County Bars’ continued participation in the attorney *114screening process for the panels, but instead replaces the County Bars’ screening with “Screening or Advisory Committees” appointed by the Appellate Division (43 RCNY 13-01). Although respondents stress that the advisory committees already exist, this does not respond to petitioners’ point that the City’s plan has no provision to ensure the County Bars’ continued participation in the attorney screening process.
In denying petitioners’ challenge to the City’s plan, the motion court’s rationale was based on the premise, urged by the City and Legal Aid, that the new plan will be a combination plan pursuant to County Law § 722 (4), as it has been in the past. However, this was an incorrect assumption. Petitioners stress that there is no “plan of a bar association,” as contemplated by County Law § 722 (3), because the bar associations have not approved the City’s plan, which retains some portions of the 1965 Bar Plan but otherwise materially deviates from that plan. There is no dispute that the County Bars did not author, formulate, or agree to this new version of the Bar Plan. At bottom, although I disagree with the majority as to whether the changes to the 1965 Bar Plan are material, no matter how we characterize the changes, the ineluctable reality is that a “Bar Plan” that has not been adopted, but instead has been rejected by the bar associations, is not “a plan of a bar association” as contemplated by County Law § 722 (3). Calling it a plan of a bar association does not make it so. Despite the majority’s repeated pronouncements that the City’s plan is a bar plan, it is in fact a plan of the Mayor, the City and the CJC that has been imposed upon the County Bars and permits bar members to act as conflict counsel, not pursuant to a Bar Plan crafted by them, but in accordance with the City’s vision and design.
The motion court observed that the County Bars had not adopted portions of the City plan, and held that the City has discretion under County Law § 722 to implement the plan without approval by the County Bars. The majority also holds that County Law § 722 imposes no obligation on the City to obtain County Bar approval of a section 722 (2) option. But that is not the issue; petitioners do not dispute that the City has the right to select freely from the planning options under the statute. Rather, the pertinent and dispositive point is that while the City has the discretion, without the approval of the County Bars, to implement a plan for indigent defense under any of the options set forth in County Law § 722, it certainly does not and *115cannot have the discretion to implement a “plan of a bar association” as contemplated by the statute, without the involvement and agreement of the bar associations.
Because there is no plan of a bar association, and there is no authority in the statute for the City to promulgate a plan of a bar association and impose that plan upon a bar association, it follows that the City’s plan cannot be a combination of subdivision (2) (representation by institutional providers) and subdivision (3) (representation by counsel furnished pursuant to a plan of a bar association). This conclusion is reached upon consideration of the statute and the 1965 Bar Plan, and not, as intimated by the majority, any assessment of the wisdom or prudence of the City’s plan or an exercise in judicial legislation under the guise of interpretation. I have engaged in a straightforward analysis of the meaning and intent of County Law § 722, and reviewed the various City enactments and the 1965 Bar Plan. On the other hand, the majority’s conclusion that the City’s revised plan is a valid section 722 (4) combination plan, notwithstanding the clear evidence that the 1965 Bar Plan has been largely eviscerated by the City’s plan and that there is currently no Bar Plan approved by the County Bars as is required for such a combination plan, defies logic.
The City’s plan thus falls under County Law § 722 (2). In that circumstance, section 722 (4) provides that a judge may appoint conflict counsel. The City’s plan to appoint Legal Aid as conflict counsel, and, in so doing, bypass all judicial involvement in the appointment of conflict counsel, is not authorized by the statute. I am unpersuaded by respondents’ argument, adopted by the majority, that the statute does not distinguish between conflict cases and all other cases, and that the City therefore has the authority to appoint conflict counsel by any method it deems appropriate.
The majority asserts that even if I am correct that the revised plan must be analyzed as a section 722 (2) plan, my analysis under section 722 (4) is flawed, and that accordingly the section 722 (2) plan meets the statutory criteria of County Law § 722. I note that the City has not taken the position that its plan falls under section 722 (2), most likely in recognition that the current structure of its plan must be deemed to fall under section 722 (4) in order to be valid. Although the City has made the anemic argument that a judge would not be required to appoint conflict counsel where a county elects multiple institutional providers under section 722 (2), with one provider taking pri*116mary assignment and the second taking conflict assignment, the City’s overarching argument here is that its plan is a viable plan under section 722 (4).
While the motion court and the majority are correct that County Law § 722 (2), pertaining to institutional providers, does not distinguish between conflict and nonconflict cases, the statute as a whole draws a sharp distinction between conflict and nonconflict cases, particularly as it pertains to the use of institutional providers, by providing that when the City has not placed in operation a combination plan or plan under subdivision (3) — in other words, where the City has a plan under subdivisions (1) or (2) — and there is a conflict, the judiciary may assign any attorney (§ 722 [4]). The motion court noted that the judiciary’s authority under section 722 (4) to appoint conflict counsel would not be triggered where there was a combination plan under section 722 (2) and (3), implicitly recognizing that the judiciary assigns conflict counsel in other instances pursuant to County Law § 722.
Had the Legislature intended a private legal aid bureau to be an appropriate source of conflict counsel in a section 722 (2) plan, it would have said so, instead of providing for assignment of conflict counsel by the judiciary. In reading the statute as a whole, which the majority correctly points out is the proper method for construing legislative intent, there are three distinct subdivisions of the statute that refer to conflict cases — subdivisions (4) and (5), which refer to assignment of conflict counsel by the judiciary, and the recently revised subdivision (3), which pertains to representation pursuant to a plan of a bar association. Importantly, subdivision (3) was amended by the Legislature in June 2010 to add language referring to an office of conflict defender. County Law § 722 (3) (a) now reads:
“Representation by counsel furnished pursuant to either or both of the following: a plan of a bar association in each county or the city in which a county is wholly contained whereby: (i) the services of private counsel are rotated and coordinated by an administrator, and such administrator may be compensated for such service; or (ii) such representation is provided by an office of conflict defender” (added language italicized).
While the majority points out that the Legislature did not act on a proposed 2011 amendment to clarify the language in section 722 (3), there are any number of reasons for the Legisla*117ture’s failure to act, including considerations that have no bearing on the merit or utility of the proposed amendment. Our focus should be on the amendment that was passed, which, by adding language about an office of conflict defender to the subdivision pertaining to a plan of a bar association, links the concepts of conflict defender with representation pursuant to a bar plan. The majority misconstrues my opinion when it suggests that I am interpreting the statute to make a bar plan under section 722 (3) the sole mechanism for conflict defense, and thus engaging in impermissible judicial legislation. I acknowledge that the City could establish an office of conflict defender pursuant to section 722 (3) (a) (ii), and that alternatively the City could choose a combination plan of section 722 (1) and (2). I find that because the City has done neither, but instead has purportedly devised a combination plan of section 722 (2) and (3) that is in reality no such thing, the City’s plan impermissibly crafts an alternative option for the assignment of conflict counsel that is not set forth in the statute. Accordingly, the plan violates Municipal Home Rule Law § 11 (1) (e), which prohibits the adoption of a local law which supersedes a state statute, if such local law “affects the courts” (see Goehler v Cortland County, 70 AD3d 57, 60 [2009]).
Moskowitz and Richter, JJ., concur with Andrias, J.; Mazzarelli, J.E, and Abdus-Salaam, J., dissent in a separate opinion by Abdus-Salaam, J.
Order and judgment (one paper), Supreme Court, New York County, entered January 19, 2011, affirmed, without costs.
. The City asserts that some of the statements in the second addendum were incorrect.
. New York City Executive Order No. 118 of 2008 had also repealed Executive Order No. 178 of 1965.