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C.P.L.R. (§510[3])

This case involves for petitions pursuant to Article 10 of the Mental Hygiene Law. In April 2008, the State moved to transfer the venue of these proceedings from New York County, where they are currently located, to the jurisdictions where the crimes committed by the offenders in these cases occurred. Specifically, the State moves to transfer venue in the first matter from New York County to Chemung County, in the second matter from New York County to Oswego County, and in the third matter from New York County to Ulster County.

A New York Criminal attorney said that although each of these motions was brought separately and these cases have not been formally consolidated, the legal issues, procedural history, counsels for the parties and many of the factual issues in these motions overlap.

These cases all arose pursuant to a unique procedural history. In the fall of 2005, after failing to achieve passage of legislation to provide for the civil commitment of persons convicted of sex crimes for a number of years, the Governor charged state officials to “push the envelope” and use the provisions of the existing Mental Hygiene Law to civilly confine convicted sex offenders whose prison terms were ending.

Twelve convicts of sex crimes were confined at the conclusion of their prison terms at the Manhattan Psychiatric Center pursuant to this directive. The Governor relied upon M.H.L. § 9.27(a) for these actions, which authorizes the involuntary confinement of persons who are mentally ill, in need of involuntary care and treatment and pose a danger to themselves or society. Some of these first twelve criminal offenders were later transferred to a Psychiatric Center also located in New York County.

The Deputy Director of Mental Hygiene Legal Services petitioned for a writ of habeas corpus seeking the release of the offenders. The trial court granted the writ based on procedural errors the trial court found had been made in committing the offenders and based on the trial court’s finding that the Petitioners had been deprived of their due process protections and were being illegally detained. The Court ordered the Petitioners released unless additional psychiatric examinations in compliance with the statute and other appropriate procedural steps were followed. The Appellate Division reversed the trial court’s decision and dismissed the habeas corpus petition. The Court of Appeals then reversed the Appellate Division’s decision, but fashioned a more limited remedy for the Petitioners than the trial court had originally imposed. With respect to the Petitioners, retention hearings under Article 9 of the Mental Hygiene Law were ordered, but no other relief for those individuals was granted.

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.

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[3]), 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”.

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 rape 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 criminal 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.

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 criminal 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”

The conflicting arguments which have been made by the State and the Respondents in these motions, moreover, provide a compelling demonstration of why the C.P.L.R.’s evidentiary venue requirements are essential in Article 10 cases. In the 2nd matter, while the State asserts that relevant witnesses, including crime victims, reside in Ulster County where the Respondent’s crimes were committed, the Respondent asserts that these crime victims resided in New Jersey when the sex crimes were committed 27 years ago and that there is no information which has been presented about where they might reside today. Respondent also asserts that respondent lived in Ulster County for approximately only one year and resided there primarily on weekends.

Respondents assert that various physicians, whom they have named, who have treated or evaluated the Respondents are located in close proximity to New York County and would be inconvenienced by having to travel to the locations where the State is moving to transfer venue. That is, while some of the witnesses relevant to the commission of Respondent’s crimes may, even decades after these crimes were committed, continue to reside in those jurisdictions, witnesses who can testify about the current condition of the Respondents are located in proximity to New York County. Reckless endangerment was not charged.

The crucial confidentiality protections provided to crime victims under Article 10 could easily be accommodated, however, by issuing a protective order to shield any victim identifying information in a venue change motion or requiring that such information be provided to the court in-camera. Indeed M.H.L. §10.08(d), cited above, would appear to require such a criminal procedure if information about crime victims was provided by the State in connection with a venue change motion. The State has not moved, however, to invoke any of these possible protections. Rather, they have taken the position that to prevail on this motion, they are simply not required to provide any specific information about crime victims or other witnesses who might be inconvenienced by retaining venue in its current location.

While the venue change statute at issue in these motions notes three factors the court may consider in making venue change determinations, those considerations, as noted above, are not exclusive. Rather, venue may be moved upon any basis if “good cause” is shown. The State makes a number of closely related arguments about why good cause exists to move venue in these cases apart from the three non-exclusive factors discussed above.

A critical factor which the Court considering the imposition of SIST may want to consider as well is where an offender might receive the most effective supervision and treatment. It might well be, for example, that even if any of the Respondents here wanted to return to the localities where their domestic violence crimes were committed for SIST, that a different venue might provide a more effective supervision, treatment and management regime.

As noted above, courts will retain jurisdiction over civil management cases for as long as offenders are confined or subject to SIST, a period which may last decades, even as long as 50 years or more. Under the more restrictive reading of the statute outlined here, once a trial had occurred, a court would be powerless, under any circumstance, to transfer the venue of a proceeding ever again.

In the view of this Criminal Court, the State is essentially asking that the Article 10 statute be construed to allow for the State 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.

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, 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 a 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 criminal cases in which a particularized showing of good cause had been made.

In the view of the Court, the State has not made the particularized demonstration of good cause required by the statute in these motions and indeed, as outlined, 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 crime 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. The State’s motions in these cases, as noted above, are therefore denied.

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