STATE OF NEW YORK v. CARTER, JAMES R. ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1141
CA 11-02087
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.
IN THE MATTER OF THE STATE OF NEW YORK,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
JAMES R. CARTER, RESPONDENT-APPELLANT.
JOHN E. TYO, SHORTSVILLE, FOR RESPONDENT-APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF
COUNSEL), FOR PETITIONER-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 by denying the motion and vacating the
first and second ordering paragraphs and as modified the order is
affirmed without costs.
Memorandum: Respondent appeals from an order granting
petitioner’s motion for a change of venue from Livingston County to
Broome County in this Mental Hygiene Law article 10 proceeding. In
support of its motion, petitioner provided the affirmation of its
attorney stating that numerous victims and law enforcement witnesses
would be “greatly inconvenienced” if required to travel from Broome
County to Livingston County. Petitioner also argued in support of the
motion that the underlying crimes, which were committed more than 20
years before the petition was filed, were committed in Broome County
and that respondent had the greatest ties to that county. In
opposition, respondent’s attorney asserted in an affirmation that
petitioner failed to establish 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 an
article 10 proceeding and thus the convenience of victims and law
enforcement witnesses does not 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 State his
entire life before relocating to Broome County with a codefendant and
had no ties to that county. In reply, petitioner provided the
redacted affidavits of two victims and the affidavit of a police
witness stating that they had been advised that they may be subpoenaed
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CA 11-02087
to testify and that it 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
part of the hearing.”
We conclude that petitioner failed to establish good cause for a
change of venue (see Mental Hygiene Law § 10.08 [e]). Although the
convenience of witnesses may constitute good cause (see id.), here
petitioner failed to “set forth specific facts sufficient to
demonstrate a sound basis for the transfer” (Matter of State of New
York v Williams, 92 AD3d 1271, 1271-1272; see Matter of State of New
York v Zimmer [appeal No. 2], 63 AD3d 1562, 1562-1563). 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 (see Zimmer, 63 AD3d at 1563).
Respondent further contends that he was denied effective
assistance of counsel because, in opposition to the motion, his
attorney failed to identify respondent’s proposed witnesses and the
nature of the expected testimony. We reject that contention. We note
that because respondent is subject to civil confinement, the standard
for determining whether effective assistance of counsel was provided
in criminal matters is applicable here (see Matter of State of New
York v Campany, 77 AD3d 92, 98, lv denied 15 NY3d 713). Nevertheless,
respondent failed to “demonstrate the absence of strategic or other
legitimate explanations” for his attorney’s alleged deficiency (People
v Caban, 5 NY3d 143, 154), and we conclude that his attorney provided
meaningful representation (see generally People v Baldi, 54 NY2d 137,
147).
Entered: November 9, 2012 Frances E. Cafarell
Clerk of the Court