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
-2- 1141 

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