Opinion
920 CA 12-01334
09-26-2014
In the Matter of the Application for Discharge of Charles BROOKS, Consecutive No. 262223, from Central New York Psychiatric Center Pursuant to Mental Hygiene Law § 10.09, Petitioner–Appellant, v. STATE of New York, New York State Office of Mental Health and New York State Division of Parole, Respondents–Respondents.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), For Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of Counsel), for Respondents–Respondents.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), For Petitioner–Appellant.
Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of Counsel), for Respondents–Respondents.
PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND WHALEN, JJ.
Opinion
MEMORANDUM:Petitioner was previously determined to be a dangerous sex offender requiring civil confinement and was committed to a secure treatment facility (see Mental Hygiene Law § 10.01 et seq. ; Matter of State of New York v. C.B., 88 A.D.3d 599, 599, 931 N.Y.S.2d 300, appeal dismissed and lv. denied 18 N.Y.3d 905, 940 N.Y.S.2d 213, 963 N.E.2d 790 ). Petitioner now appeals from an order continuing his confinement in a secure treatment facility (see § 10.09[h] ). We reject petitioner's contention that respondents failed to prove by clear and convincing evidence that he is a dangerous sex offender requiring continued confinement (see Matter of Sincere KK. v. State of New York, 111 A.D.3d 1083, 1083–1084, 975 N.Y.S.2d 245, lv. denied 22 N.Y.3d 862, 2014 WL 642743 ; Matter of William II. v. State of New York, 110 A.D.3d 1282, 1283, 974 N.Y.S.2d 158 ). To the extent that petitioner contends that respondents' expert witness improperly relied upon hearsay testimony, we conclude that Supreme Court is presumed to have properly given any hearsay statements limited legal significance in making its determination, and that any evidentiary error is harmless (see Matter of State of New York v. Mark S., 87 A.D.3d 73, 80, 924 N.Y.S.2d 661, lv. denied 17 N.Y.3d 714, 2011 WL 4977120 ).
As the First Department concluded on his appeal from the initial determination under Mental Hygiene Law article 10, “there is no merit to [petitioner's] argument that he is entitled to release on the ground that his initial confinement under article 9 of the Mental Hygiene Law had been illegal” (C.B., 88 A.D.3d at 599–600, 931 N.Y.S.2d 300 ; see People ex rel. Joseph II. v. Superintendent of Southport Corr. Facility, 15 N.Y.3d 126, 133, 905 N.Y.S.2d 107, 931 N.E.2d 76, rearg. denied 15 N.Y.3d 847, 909 N.Y.S.2d 19, 935 N.E.2d 811 ). Indeed, petitioner and others similarly situated challenged their confinement under article 9 in State of New York ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 825 N.Y.S.2d 702, 859 N.E.2d 508 ; see Matter of State of New York v. C.B., 18 Misc.3d 1136(A), 2008 WL 483750, *1, and the Court of Appeals determined that the petitioners were not entitled to immediate release, but rather should be afforded the appropriate hearing (see Harkavy, 7 N.Y.3d at 614, 825 N.Y.S.2d 702, 859 N.E.2d 508 ; see also State of N.Y. ex rel. Harkavy v. Consilvio, 8 N.Y.3d 645, 651–652, 838 N.Y.S.2d 810, 870 N.E.2d 128 ), which petitioner received here.
Contrary to petitioner's contention, the court properly denied his motion for a change of venue because the court did not have the authority to change venue in a hearing held pursuant to Mental Hygiene Law § 10.09 (see Matter of Davis v. State of New York, 106 A.D.3d 1488, 1489, 966 N.Y.S.2d 300, lv. granted 22 N.Y.3d 852, 975 N.Y.S.2d 385, 997 N.E.2d 1237 ). In any event, petitioner failed to establish good cause for a change of venue inasmuch as he made only conclusory statements regarding the convenience of his witnesses (see Matter of State of New York v. Steinmetz, 101 A.D.3d 1726, 1727, 956 N.Y.S.2d 783 ).
We reject petitioner's further contention that the court erred in denying his request to substitute counsel or to proceed pro se. Petitioner failed to show good cause for substitution (see People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ). Assuming, arguendo, that petitioner had a right to self-representation (see Matter of State of New York v. Raul L., 120 A.D.3d 52, 63–64, 988 N.Y.S.2d 190 ; see also Matter of State of New York v. Timothy BB., 113 A.D.3d 18, 21, 975 N.Y.S.2d 237, appeal dismissed and lv. denied 23 N.Y.3d 941, 987 N.Y.S.2d 593, 10 N.E.3d 1149 ), we conclude that petitioner did not make an unequivocal request to proceed pro se (see People v. Gillian, 8 N.Y.3d 85, 88, 828 N.Y.S.2d 277, 861 N.E.2d 92 ; People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.