| Matter of State of New York v Carter |
| 2012 NY Slip Op 07505 [100 AD3d 1438] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v James R. Carter,Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Livingston County (Robert B. Wiggins, A.J.),entered March 30, 2011 in a proceeding pursuant to Mental Hygiene Law article 10. The order,among other things, granted the motion of petitioner for a change of venue.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion and vacating the first and second ordering paragraphs and as modified theorder is affirmed without costs.
Memorandum: Respondent appeals from an order granting petitioner's motion for a changeof venue from Livingston County to Broome County in this Mental Hygiene Law article 10proceeding. In support of its motion, petitioner provided the affirmation of its attorney statingthat numerous victims and law enforcement witnesses would be "greatly inconvenienced" ifrequired to travel from Broome County to Livingston County. Petitioner also argued in supportof the motion that the underlying crimes, which were committed more than 20 years before thepetition was filed, were committed in Broome County and that respondent had the greatest ties tothat county. In opposition, respondent's attorney asserted in an affirmation that petitioner failed toestablish good cause for a change of venue, as required by Mental Hygiene Law § 10.08(e), because the underlying crimes are "deemed established and shall not be relitigated" in anarticle 10 proceeding and thus the convenience of victims and law enforcement witnesses doesnot constitute good cause for a change of venue (§ 10.07 [c]; see § 10.08[e]). Respondent's attorney further asserted that respondent had lived outside of New York Statehis entire life before relocating to Broome County with a codefendant and had no ties to thatcounty. In reply, petitioner provided the redacted affidavits of two victims and the affidavit of apolice witness stating that they had been advised that they may be subpoenaed to testify and thatit would be inconvenient to travel to Livingston County. Supreme Court granted the motion,determining that the testimony of the proposed witnesses, "if necessary, may be an integral partof the hearing."
We conclude that petitioner failed to establish good cause for a change of venue (seeMental Hygiene Law § 10.08 [e]). Although the convenience of witnesses may constitutegood cause (see id.), here petitioner failed to "set forth specific facts sufficient todemonstrate a sound [*2]basis for the transfer" (Matter of State of New York vWilliams, 92 AD3d 1271, 1271-1272 [2012]; see Matter of State of New York vZimmer [appeal No. 2], 63 AD3d 1562, 1562-1563 [2009]). Instead, petitioner's attorneystated that the victims and law enforcement witnesses "may" be called, "if necessary," and furtherstated in a conclusory manner that respondent had the greatest ties to Broome County (seeZimmer, 63 AD3d at 1563).
Respondent further contends that he was denied effective assistance of counsel because, inopposition to the motion, his attorney failed to identify respondent's proposed witnesses and thenature of the expected testimony. We reject that contention. We note that because respondent issubject to civil confinement, the standard for determining whether effective assistance of counselwas provided in criminal matters is applicable here (see Matter of State of New York v Campany, 77 AD3d 92, 98[2010], lv denied 15 NY3d 713 [2010]). Nevertheless, respondent failed to "demonstratethe absence of strategic or other legitimate explanations" for his attorney's alleged deficiency (People v Caban, 5 NY3d 143, 154[2005]), and we conclude that his attorney provided meaningful representation (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]). Present—Scudder, P.J., Smith, Fahey,Carni and Valentino, JJ.