A New York Sex Crimes Lawyer said that, the Court ordered that the petitioners be subject to all of the required procedures under Article 10 of the Mental Hygiene Law which had become effective on April 13th, 2007, after the petitions had been filed but prior to the time the Court of Appeals decide. The Court noted that although Article 10 of the Mental Hygiene Law was enacted subsequent to the placement of the respondents at the Kirby Forensic Psychiatric Center under Article 9 of the Mental Hygiene Law, the respondents were explicitly designated as subject to Article 10 of the Mental Hygiene Law by the terms of the statute.
A New York Criminal Lawyer said that, the State commenced each of the actions at issue here in New York County more than 2 ½ years ago, initially, pursuant to Article 9 of the Mental Hygiene Law and later under Article 10. Respondents have been confined in New York County where the cases have continued to be venue since that time. Prior to moving to change venue in these motions in April of this year, no motions for a change of venue had been made by either the State or the Respondents in these cases. A trial date has not yet been set in any of these actions.
The issue in this case is whether the motion to change the venue of the case should be granted. No drug possession was involved.
The Sex Offender Civil Management statute contains two distinct change of venue provisions. The first, not directly at issue here, concerns how venue is initially established in these proceedings. It provides that when the Attorney General elects to file a sex offender civil management petition, the petition shall be filed where the offender is located. Venue for offenders who are incarcerated or confined in a mental health facility when a petition is filed thus lies initially at the location where the facility housing the offender is located, regardless of where the offender’s sex crime offense was committed.
An offender who is found subject to civil management after trial (or pursuant to an agreed-upon disposition) is subject to one of two possible dispositions made by the court. If the offender is found by the court to be a “dangerous sex offender requiring confinement”, the offender is placed in a secure mental health facility. If such a finding is not made, the offender is deemed “a sex offender requiring strict and intensive supervision” and the court then imposes supervision conditions upon the respondent.
The phrase “good cause” under the venue provision at issue here lists three non-exclusive examples of issues which can be considered in making a venue change determination under the statute. They are the convenience of the parties, the convenience of witnesses and the condition of the respondent. With respect to the convenience of witnesses factor, the Court finds that the State has not made the evidentiary showing which is required by law for the Court to make a determination that this factor weighs in favor of granting the State’s motion.
As noted above, the “convenience of witnesses” ground for a change of venue under Article 10 is strikingly similar to one of the grounds for a change of venue under the C.P.L.R (§510), which provides that the “convenience of material witnesses” and “the ends of justice” may provide a basis to change venue under the C.P.L.R. In these motions, both the State and the Respondents cite to cases decided under the general C.P.L.R. venue provision to argue that this factor weighs in favor of granting or denying the instant motion.
Under C.P.L.R. §510(3), it is well settled that “a change of venue based on the convenience of witnesses may only be granted after there has been a detailed evidentiary showing that the convenience of nonparty witnesses would in fact be served by the granting of such relief”. Four criteria should generally be met by the moving party in such motions. First, the affidavit in support of the motion must provide the names, addresses and occupations of the witnesses. Second, the moving party must disclose the facts the witnesses will testify to, so the trial court can determine whether the testimony would be necessary or material. Third, the movant must show that the witnesses are in fact willing to testify. Finally, there must be a showing as to how the witnesses would in fact be inconvenienced if venue were not changed.
The State in these motions cites cases decided under C.P.L.R. §510(3) to argue that venue should be changed in these Article 10 cases, inter alia, because of the convenience of potential government employee witnesses. The State simultaneously argues, however, that the evidentiary standards which were met by the movants in these cited cases and must be met by movants in all venue change motions under C.P.L.R. §510(3) should not be applicable in these Article 10 proceedings.
It is undisputed that in these motions, the State has not satisfied any of the evidentiary showings which would be required under the C.P.L.R. They have not identified the name of a single specific witness who would be inconvenienced if venue were not changed in these cases. They have not provided any specific information as to what any of these prospective witnesses would testify to if called at trial. With one exception they have not indicated that they have contacted any witnesses to ascertain their current locations or availability. They have not specifically indicated how any potential witnesses would be inconvenienced if required to testify in these proceedings.
Rather, the State generally asserts that categories of witnesses, for example, police officers, correctional personnel, doctors or crime victims, whom the state believes or speculates are in far flung locations and stand ready and able to provide relevant and admissible testimony would likely be significantly inconvenienced if these proceedings were not transferred to new venues. The State makes the logical argument that the location where the crimes were committed in these cases, even decades after some of these crimes were committed, may continue to house witnesses who will present relevant testimony. They further argue that although the standard for transferring venue in an Article 10 case by virtue of witness convenience essentially mimics the standard provided under the C.P.L.R., the C.P.L.R. standard should not be applicable in these cases. Rather, they argue that the kind of summary assertions they have put forward here should be sufficient for the court to find that the convenience of witnesses would be facilitated by a venue transfer.
C.P.L.R. §101 provides that the C.P.L.R.’s provisions “shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute.” Given that Article 10 contains its own detailed venue provisions, in the view of this Court, it is clear that venue change determinations under Article 10 are governed by Article 10, rather than the C.P.L.R.’s general change of venue provisions. It is also clear in this Court’s view, however, that the well-established requirements for moving venue based on witness convenience applicable under the C.P.L.R. are also applicable under Article 10.It is well-settled under New York law that “words having a precise and well-settled legal meaning in the jurisprudence of the state are to be understood in such sense when used in statutes, unless a different meaning is plainly indicated.”
Here, there is no indication on the face of the Article 10 statute or its legislative history that the legislature, in enacting Article 10, intended to abrogate the well-settled evidentiary requirements applicable to change of venue motions based on witness convenience. Indeed, as noted supra, the legislature used virtually the same phrase to describe this consideration in Article 10 as the phrase contained in the C.P.L.R. At the time Article 10 was enacted, the evidentiary requirements for venue change motions based on witness convenience under the C.P.L.R. had been well-settled for more than a decade. It should be assumed that “in drafting the statute, the Legislature understood and adopted that well-settled meaning”.
In the view of this Court, the State is essentially asking that the Article 10 statute be construed to allow for the State (or perhaps the Respondents as well) to use M.H.L. §10.08(e) to move venue to the location where an offender’s crime was committed in any case, since the same arguments the State is making here would apply in any Article 10 proceeding. This is precisely the issue which the legislature considered and resolved in M.H.L. §§10.06(a) & (b), however. To construe the statute as the State urges, in the view of this Court, would make the careful procedural scheme contained in M.H.L. §§10.06(a) & (b) a nullity, since a party could always make the same showing the State has made in the instant motions at any time and have venue transferred to the location where an offender’s crime had been committed in any case.
The venue provision at issue in these motions, in the view of this Court, is of a wholly different character than the provision discussed immediately supra. M.H.L. §10.08(e), at issue here, in the view of this Court, contemplates a venue change not because it is better policy to conduct trials in the locations where an offender’s crimes were committed, but on the basis of facts particular to an individual case. That is, having resolved the policy issues which inherently form the basis for the State’s motions here in Article 10’s initial venue setting provisions, the legislature went on to provide a catch-all additional venue shifting provision to address any cases in which a particularized showing of good cause had been made.
In the view of this Court, the State has not made the particularized demonstration of good cause required by the statute in these motions and indeed, as outlined supra, a number of countervailing considerations exist which argue that venue should not be changed in these cases. Whatever the merits of the policy arguments inherent in allowing the State or respondents to move venue to the location where an offender’s crimes had been committed may be, the statute, in this Court’s view, simply does contemplate that those arguments, standing alone, constitute “good cause” to change venue.
Accordingly, the court held that the state’s motions in these cases, as noted above, are therefore denied.
The problem created by the seemingly unusual construction of the statutory language remained dormant until 1970, when the same District Court judge was called upon to review the question. This case, however, had an added twist. Unlike the Purves case the defendant in Maguire was charged with possession and use of marijuana, then as now considered a ‘narcotic’ under law even though it is not regarded as addictive. The court arrived at a rather curious finding. It held that the questioned section (the former section 207 of the Mental Hygiene Law) did not, and apparently never was, intended to apply to persons accused of possession of marijuana, in the absence of symptoms of narcotic addiction. The criminal court stated that ‘the procedure of referring marijuana users for narcotic addiction examination has resulted in a gross waste of time and public money’ and further that ‘the conducting of such futile examinations actually impedes the work of the Narcotic Addiction Control Commission by diverting doctors from more productive work and interferes with the judicial process as well.’
This court, with all due deference to the learned judge in the Purves and Maguire cases, in unable to discern how the purpose and intent of the legislature could so drastically change between 1967 and 1970 without any change in the statutory language. This court is, however, inclined to accept the rationale of the Maguire case insofar as it does not require examination for addiction where symptoms, admissions or other signs of addiction are absent.
The only appellate level case dealing with the interpretation of this portion of section 207 was the 1971 case decision. In that case, the defendant appealed on an alleged excessiveness of sentence. The arguments and briefs of counsel were directed solely to this issue. The Appellate Division upon reading the record found that in the presentence report and at the time of sentencing the defendant indicated that he was seeking assistance in overcoming ‘his narcotic uses in the past.’ The Court in a memorandum decision held that, ‘Since defendant was charged with a violation of article 220 of the Penal Law, the sentencing court should not have imposed sentence prior to receiving the report of the medical examination mandated by sections 207 and 208 of the Mental Hygiene Law.’
On April 5, 1971, the District Attorney’s Office of Suffolk County sought reargument of the Olson case and modification of the decision. The district attorney conceded the correctness of the court’s decision since in the particular case there was evidence that the criminal defendant was dependent upon narcotic drugs. However, he contended that were it not for these manifestations, an examination would not have been required. In other words, that a charge under article 220, in and of itself, does not require an examination under section 81.19 (formerly 207) of the Mental Hygiene Law. The Appellate Division granted reargument, vacated its own order, and upon reargument sustained the County Court’s determination that an examination would not be required unless outward manifestations or indications of addiction were present.
The dissenting opinion recognized the issue, and acknowledged the ‘somewhat ambiguous phraseology of section 207 (of the Mental Hygiene Law)’. Unfortunately, the learned justice fell into the interpretive trap unwittingly set by the legislature. The justice stated that: ‘that section provides in substance that any person charged with an article 220 crime (i.e., a drug crime) and any person charged with any felony or misdemeanor or the offense of prostitution, ‘who, while in custody or when he appears before the court, shall state, indicate or show symptoms, or it otherwise appears, that he is a narcotic addict’, shall be examined.’ The justice then posed the following question: ‘. . . does the quoted clause modity both of the foregoing classes of persons or only the second class?’
To Be Cont…
The conclusion he drew, grudgingly, and on constraint, was: ‘. . . that it modifies only the second class, for, were it otherwise, There would have been no need to state the first class separately, since all article 220 crimes are felonies or misdemeanors and would have been included in any event. It would seem that we must conclude that the Legislature had in mind to treat drug violators differently from others.’
The conclusion, so deceptively cogent and plausible, must fall because of an omission in the major premise. The justice’s citation of the statute (section 207) makes no reference to the fact that examinations are only mandated under the designated circumstances where a person is charged with ‘any felony or misdemeanor or the offense of prostitution, which was committed after October first, nineteen hundred sixty-seven.’ (Mental Hygiene Law, § 81.19, subd. (a). Had the learned justice focused upon the different operative dates of the various portions of the section then, no doubt, he would have indeed found a ‘need to state the first class separately’ other than one of differential treatment for drug offenders.
The Suffolk County District Attorney’s brief on reargument based his contention upon several arguments. First, that the use of commas to set off each of the clauses instead of semicolons or colons indicated that the clause pertaining to symptoms applied equally to all the preceding clauses; that it would be grammatically incorrect to limit the appearance of symptoms to those persons charged with felonies, misdemeanors or prostitution. Second, that the definition of ‘narcotic addict’ as contained in section 201 of the Mental Hygiene Law does not include persons dependent upon or in criminal possession of marijuana nor a non-addict who sells or ‘pushes’ hard drugs.
In view of the legislative history of the section (207) previously discussed, it is clear that the legislature did not intend that all article 220 offenders submit to narcotic examinations irrespective of the presence of signs of addiction. Further, that all the arguments and counterarguments raised, however logical they may be, were not within the contemplation of the legislature when the section was enacted.
As to the instant case, this Court finds that at time of sentence the defendant was ably represented by private counsel. The Court had a full and complete presentence report before it as well. The defendant at no time admitted that he was an addict nor did he exhibit any signs of addiction.
With reference to the presentence report, the Court notes that the defendant was extensively interviewed by a senior member of the Office of Probation. The probation officer questioned the defendant as to drug use. The defendant stated that while on occasion ‘he sniffed heroin and cocaine, he did not consider himself an addict’. In addition, the Court had before it a ‘CR–1N’ (form indicating that narcotic addiction was not suspected) signed by the arresting officer.
The defendant in his motion papers rests his prayer for relief solely upon the fact that he was charged with a violation of article 220. He still does not admit addiction. The defendant was originally charged with possession of a felony weight of heroin and with possession of paraphernalia commonly used in the cutting and distribution of dangerous drugs. A plea of guilty to a charge of violating section 220.05 of the Penal Law (misdemeanor possession) was accepted to cover the underlying charges. The assistant district attorney recommended incarceration for one year and the case was adjourned for investigation and sentence. This Court sentenced the criminal defendant to incarceration for a period of nine months.
The defendant cites numerous cases for the proposition that if a defendant is found to be a narcotic addict as a result of an examination that the court is obliged to sentence such defendant to the care and custody of the Narcotic Addiction Control Commission. Even if this were true, and the law by no means makes the examination results conclusive evidence of addiction, it would not avail this defendant. All the cases cited are distinguishable from the instant case in that the cited cases involve circumstances where the defendant either admitted or showed signs of addiction. A weapon was not found.
Accordingly, the court held that the defendant’s motion to set aside his sentence and to be resentenced after an examination for narcotic addiction is denied.