Opinion
No. 0203/2013.
2013-03-7
In the Matter of the Application of The STATE of New York, Petitioner, v. Bourlaye TOURE, Din 88B0792, an inmate in the custody of the New York State Department of Corrections and Community Services, Respondent, for Civil Management Pursuant to Mental Hygiene Law Article 10.
Sarah Crabtree, Esq., Assistant Attorney General, Office of the New York State Attorney General, Poughkeepsie, Attorney for Petitioner. Eugenia Brennan Heslin, Esq., Mental Hygiene Legal Service, Poughkeepsie, Attorneys for Respondent.
Sarah Crabtree, Esq., Assistant Attorney General, Office of the New York State Attorney General, Poughkeepsie, Attorney for Petitioner. Eugenia Brennan Heslin, Esq., Mental Hygiene Legal Service, Poughkeepsie, Attorneys for Respondent.
JAMES D. PAGONES, J.
This motion by petitioner pursuant to Mental Hygiene Law (“MHL”) § 10.08(e) for an order changing the venue of the underlying Article 10 proceeding from the Supreme Court, Dutchess County to the Supreme Court, Richmond County, is granted.
The record indicates that respondent did not file a notice of removal to the county of the underlying sex offense charges (Richmond County) according to MHL § 10.06(b) after the sex offender civil management petition was filed. This Court conducted a hearing on January 29, 2013 pursuant to MHL § 10.06(k). Probable cause was found to exist that the respondent is a sex offender requiring civil management. The respondent has been committed to a secure treatment facility designated by the Commissioner of the New York State Office of Mental Health (“OMH”) pending trial or other disposition. The petitioner's motion for a change of venue followed.
The arguments of counsel in support and opposition mirror those which this Court considered in Matter of State of New York v. James B., 2013 N.Y. Misc. LEXIS 47, 2013 N.Y. Slip Op 23007. That decision and order focused on the convenience of witnesses issue. The single exception here is the reference by respondent's counsel to his interaction with the Dutchess County Office of Immigration and Customs Enforcement (“ICE”) and respondent's desire to be deported to his native country. That argument is not germane to this motion.
According to Mapquest, Richmond County is one hundred (100) miles from Dutchess County. Petitioner's expert witness maintains her office at Manhattan Psychiatric Center, which is approximately twenty (20) miles from Richmond County and eighty (80) miles from Dutchess County. Petitioner's counsel has identified five (5) potential witnesses, their relationship to respondent's underlying case and the subject matter of their involvement. All of these witnesses are municipal employees of either New York City or Richmond County. This Court is cognizant of the decisional authority within this judicial department that “[t]he convenience of state and local government officials is of paramount importance because they should not be kept from their duties unnecessarily.” (Chimirri v. Evergreen America Corporation, 211 A.D.2d 743, 744, 621 N.Y.S.2d 694 [2d Dept.1995].) Petitioner has determined that eight (8) of respondent's victims continue to reside in Richmond County. Of that number, three (3) are of advancing age, ranging from the late sixties to early eighties.
Richmond County was the only location within which respondent had any ties such as housing and employment after he entered the United States from the Ivory Coast. Indeed, the record indicates he was living in Richmond County for just a few weeks before engaging in the crimes, including sex crimes, which ultimately led to his arrest and conviction. All of the offenses occurred in Richmond County. Any personal relationships he established following his arrival in America occurred in Richmond County.
Records pertaining to the respondent indicate that he has no family, social or employment contacts with Dutchess County. The only connection to Dutchess County is his incarceration in Fishkill Correctional Facility at the time this proceeding was initiated. No potential witnesses from Dutchess County have been identified. As previously noted, any witness testifying on behalf of ICE and respondent's possible deportation would not be relevant in the context of this Article 10 proceeding.
The New York legislature chose to include distinct venue provisions in MHL Article 10 rather than apply the provisions of CPLR Article 5. MHL § 10.08(e) is unequivocal so as to permit the court to consider the convenience of the parties or witnesses or the condition of the respondent on a change of venue application. As to the latter factor, the condition of the respondent, no proof in probative form was submitted here.
Other considerations on a change of venue motion are future proceedings such as whether respondent is eligible for a regimen of strict and intensive supervision and treatment (MHL §§ 10.07[f] and 10.11) or petitioning the court for discharge. (MHL § 10.09[a] ). Thus, the cited statutes contemplate the potential of annual court involvement in the event of any violation of an outpatient regimen or in the circumstances of an annual exam for civilly committed individuals. ( Matter of State of New York v. James B., supra.).
Counsel for respondent urges that this Court apply the determination of the Appellate Division, Fourth Department, in Matter of State of New York v. Carter, 100 A.D.3d 1438, 953 N.Y.S.2d 794 (4th Dept., 2012) to deny the motion.
The Court determined, in relevant part:
“We conclude that petitioner failed to establish good cause for a change of venue ... Although the convenience of witnesses may constitute good cause ..., here petitioner failed to set forth specific facts sufficient to demonstrate a sound basis for the transfer' (citations omitted). Instead, petitioner's attorney stated that the victims and law enforcement witnesses may' be called, if necessary,' and further stated in a conclusory manner that respondent had the greatest ties to Broome County (citation omitted).”
The Carter holding is readily distinguishable. Counsel for petitioner has provided relevant non-conclusory information without a hint of speculation on the convenience of witnesses issue. The sufficiency and efficacy of that proof has been established in this decision to support a change of venue to Richmond County.
It is ordered that the Clerk of the Supreme Court, Dutchess County is directed to transfer this proceeding to the Clerk of the Supreme Court, Richmond County.
On this application, the Court considered the notice of motion supported by an affirmation with four (4) exhibits, affirmation in opposition with one (1) exhibit, and reply affirmation with one (1) exhibit.
The foregoing constitutes the decision and order of the Court.