| Matter of State of New York v Williams |
| 2012 NY Slip Op 01292 [92 AD3d 1271] |
| February 17, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Appellant, v NushawnWilliams, Also Known as Shyteek Johnson, Respondent. (Appeal No.1.) |
—[*1] Davison Law Office, PLLC, Canandaigua (Mark C. Davison of counsel), forrespondent-respondent.
Appeal from an order of the Supreme Court, Chautauqua County (John L. Michalski, A.J.),entered April 18, 2011 in a proceeding pursuant to Mental Hygiene Law article 10. The ordergranted respondent's motion for a change of venue.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the motion is denied.
Memorandum: Petitioner appeals from an order granting respondent's motion for a change ofvenue in this Mental Hygiene Law article 10 proceeding. We note at the outset that we affirmedthe order denying respondent's motion to dismiss the petition (Matter of State of New York vWilliams, 92 AD3d 1274 [2012]). The petition was originally filed in Supreme Court, ErieCounty, because respondent was confined in a correctional facility located therein and, followinga hearing, the court concluded that there was probable cause to believe that respondent requiredcivil management and pretrial detention (see Mental Hygiene Law § 10.06 [g]).Respondent moved for, inter alia, a change of venue from Erie County to Chautauqua County,the county in which he was convicted of the underlying offenses, on the ground that the case had"garnered unprecedented media coverage," and thus it was unlikely that he could receive a fairtrial in Erie County. Petitioner did not oppose the change in venue. Supreme Court, Erie County,granted the motion and transferred the proceeding to Chautauqua County.
Respondent thereafter moved for a change of venue back to Erie County, on the same groundupon which his prior motion was based, i.e., that he cannot receive a fair trial in the county inquestion. We conclude that Supreme Court, Chautauqua County, erred in granting respondent'smotion. Mental Hygiene Law § 10.08 (e) authorizes a court to change the venue of theproceeding "to any county for good cause, which may include considerations relating to theconvenience of the parties or witnesses." To establish good cause for a change of venue, the partyseeking such relief must set forth specific facts sufficient to demonstrate a sound basis for [*2]the transfer (see Matter of State of New York v Zimmer[appeal No. 2], 63 AD3d 1562 [2009]). Conclusory statements unsupported by facts areinsufficient to warrant a change of venue (see id.). Here, respondent failed to make anyfactual or evidentiary showing that he would be unable to obtain a fair trial in ChautauquaCounty or that a transfer was necessary for the convenience of the parties or witnesses.Present—Scudder, P.J., Fahey, Carni, Sconiers and Martoche, JJ.