Whether a respondent in a Mental Hygiene Law article 10 proceeding possesses a due process right to self-representation appears to be an open question in New York (seeMatter of Brooks v. State of New York, 120 A.D.3d 1577, 1579, 993 N.Y.S.2d 409 [2014], lv denied 25 N.Y.3d 901, 2015 WL 1422333 [2015] ; Matter of State of New York v. Timothy BB., 113 A.D.3d 18, 21, 975 N.Y.S.2d 237 [2013], appeal dismissed and lv. denied 23 N.Y.3d 941, 987 N.Y.S.2d 593, 10 N.E.3d 1149 [2014] ). Assuming, without deciding, that respondent has a due process right to self-representation, we note that any such right is not absolute (see e.g.People v. Crespo, 32 N.Y.3d 176, 178, 88 N.Y.S.3d 120, 112 N.E.3d 1243 [2018], cert denied โโโ U.S. โโโโ, 140 S. Ct. 148, 205 L.Ed.2d 47 [2019] ; People v. McIntyre, 36 N.Y.2d 10, 18, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974] ) and that the scope of due process owed to respondent is determined by applying the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ; seeMatter of State of New York v. Floyd Y., 22 N.Y.3d 95, 103, 979 N.Y.S.2d 240, 2 N.E.3d 204 (2013).
Thus, respondent has not established that counsel lacked a strategy or tactical reasons for his choices regarding how to handle the interplay of the gender dysphoria diagnosis and the Mental Hygiene Law article 10 petition. Moving to the allegations of counsel's failure to request a Frye hearing, PNOS โ the diagnosis that was replaced, in part, by OSPD โ was routinely cited as a predicate condition for mental abnormality in the years preceding respondent's trial, either alone or in combination with other diagnoses (see e.g.Matter of State of New York v. Timothy BB., 113 A.D.3d 18, 22, 975 N.Y.S.2d 237 [2013], appeal dismissed 23 N.Y.3d 941, 987 N.Y.S.2d 593, 10 N.E.3d 1149 [2014] ; Matter of State of New York v. Peter Y., 99 A.D.3d 1059, 1060โ1061, 952 N.Y.S.2d 651 [2012] ; Matter of State of New York v. James Z., 97 A.D.3d 1046, 1048, 948 N.Y.S.2d 772 [2012], lv denied 20 N.Y.3d 853, 2012 WL 6200744 [2012] ; Matter of State of New York v. Spencer D., 96 A.D.3d 768, 770, 946 N.Y.S.2d 180 [2012] ; Matter of the State of New York v. Myron P., 86 A.D.3d 26, 28โ29, 923 N.Y.S.2d 267 [2011], affd 20 N.Y.3d 206, 958 N.Y.S.2d 71, 981 N.E.2d 772 [2012] ). In late 2012, the Court of Appeals held, in Matter of State of New York v. Shannon S. , 20 N.Y.3d 99, 956 N.Y.S.2d 462, 980 N.E.2d 510 (2012), supra , that PNOS was a viable predicate condition, reasoning that any professional debate over the viability and reliability of the diagnosis is relevant to the weight to be attributed thereto and, thus, a question reserved for the finder of fact ( id. at 106โ107, 956 N.Y.S.2d 462, 980 N.E.2d 510 ).
Under these circumstances, respondent's argument is waived (seeRobinson v. State of New York , 228 A.D.2d 52, 55, 650 N.Y.S.2d 894 [1996], lv denied 89 N.Y.2d 812, 657 N.Y.S.2d 404, 679 N.E.2d 643 [1997] ; cf.Marshall v. State of New York , 252 A.D.2d 852, 854, 675 N.Y.S.2d 695 [1988] ). Finally, we reject respondent's claim that he received the ineffective assistance of counsel (seeMatter of State of New York v. Jamie KK. , 168 A.D.3d at 1234, 90 N.Y.S.3d 407 ; Matter of State of New York v. Timothy BB. , 113 A.D.3d 18, 23โ24, 975 N.Y.S.2d 237 [2013], lv dismissed 23 N.Y.3d 941, 987 N.Y.S.2d 593, 10 N.E.3d 1149 [2014] ). Petitioner did not object to this procedure.
Y.S.3d 765, 59 N.E.3d 500 ). Supreme Court credited those opinions over the conflicting testimony of a court-appointed psychiatric examiner, who opined that respondent did not suffer from a mental abnormality. We defer to Supreme Court's assessment of credibility and, after doing so, find clear and convincing evidence for the proposition that respondent suffers from a suite of psychiatric disorders that "predispose[ ] him ... to the commission of conduct constituting a sex offense and that result[ ] in [him] having serious difficulty in controlling such conduct" ( Mental Hygiene Law ยง 10.03[i] ; seeMatter of State of New York v. Dennis K., 27 N.Y.3d at 751โ752, 37 N.Y.S.3d 765, 59 N.E.3d 500 ; Matter of State of New York v. Shannon S., 20 N.Y.3d 99, 107, 956 N.Y.S.2d 462, 980 N.E.2d 510 [2012], cert denied 568 U.S. 1216, 133 S.Ct. 1500, 185 L.Ed.2d 556 [2013] ; Matter of State of New York v. Timothy BB., 113 A.D.3d 18, 22โ23, 975 N.Y.S.2d 237 [2013], appeal dismissed and lv. denied 23 N.Y.3d 941, 987 N.Y.S.2d 593, 10 N.E.3d 1149 [2014] ; Matter of State of New York v. Timothy EE., 97 A.D.3d 996, 998, 949 N.Y.S.2d 232 [2012] ; cf. Matter of State of New York v. Frank P., 126 A.D.3d 150, 163, 2 N.Y.S.3d 483 [2015] ). Accordingly, the determination that respondent has a mental abnormality was justified.
Next, respondent contends that he was denied the effective assistance of counsel on the basis that his first attorney's involvement in his underlying criminal action as the assigned Assistant District Attorney presented a conflict of interest. Initially, "while Mental Hygiene Law article 10 proceedings are civil rather than criminal, and ... ineffective assistance of counsel may only be considered in civil litigation if extraordinary circumstances are present, the indefinite and involuntary nature of confinement that may result in this type of proceeding constitutes such an extraordinary circumstance" ( Matter of State of New York v. Timothy BB., 113 A.D.3d 18, 23, 975 N.Y.S.2d 237 [2013], appeal dismissed 23 N.Y.3d 941, 987 N.Y.S.2d 593, 10 N.E.3d 1149 [2014] ; seeMatter of State of New York v. Campany, 77 A.D.3d 92, 98, 905 N.Y.S.2d 419 [2010], lv denied 15 N.Y.3d 713, 2010 WL 4183541 [2010] ). Where, as here, an ineffective assistance of counsel claim is based upon an alleged conflict of interest, the court must first determine whether such a conflict of interest existed (seePeople v. Konstantinides, 14 N.Y.3d 1, 10, 896 N.Y.S.2d 284, 923 N.E.2d 567 [2009] ; People v. Abar, 99 N.Y.2d 406, 409, 757 N.Y.S.2d 219, 786 N.E.2d 1255 [2003] ).
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, 63โ64, 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.