SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

384 

CA 11-02111 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND SCONIERS, JJ. 

 

IN THE MATTER OF TYRONE DAVIS, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

STATE OF NEW YORK, NEW YORK STATE OFFICE OF 

MENTAL HEALTH AND NEW YORK STATE DIVISION OF 

PAROLE, RESPONDENTS-RESPONDENTS. 

(APPEAL NO. 1.) 

 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF

COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF

COUNSEL), FOR RESPONDENTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Oneida County (William

D. Walsh, A.J.), entered August 12, 2011 in a proceeding pursuant to

Mental Hygiene Law article 10. The order continued petitioner’s

commitment to a secure treatment facility. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In March 2010 Supreme Court, Bronx County,

determined that petitioner was a dangerous sex offender in need of

civil confinement (see Mental Hygiene Law § 10.07 [f]). He is

currently confined at the Central New York Psychiatric Center in

Oneida County. Pursuant to Mental Hygiene Law § 10.09 (a), in early

2011 the Commissioner of respondent New York State Office of Mental

Health (OMH) provided petitioner with an annual written notice of the

right to petition the court for discharge, which included a waiver

option. Petitioner checked the box indicating that he did not wish to

waive his right to petition for discharge. A psychiatric examiner for

OMH attempted to interview petitioner, but he refused to meet with

her. The expert issued a written evaluation, and the Commissioner

determined based on the report that petitioner was still a dangerous

sex offender in need of confinement. The annual notice and waiver

form, the Commissioner’s written determination, and the expert’s

report were forwarded to Supreme Court, Oneida County. The court

appointed an independent psychiatric examiner chosen by petitioner’s

counsel, but petitioner refused to meet with him as well. That expert

indicated that he was unable to prepare a report without having a

personal examination. On the day scheduled for the annual review
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CA 11-02111 

hearing, petitioner did not appear. The court confirmed with

petitioner’s counsel that petitioner was waiving the right to a

hearing, and the court thereafter issued an order finding that

petitioner is a dangerous sex offender in need of confinement.

Petitioner first contends that the court erred in denying his

motion for a change of venue to New York County. Contrary to

respondents’ contention, petitioner’s appeal from the final order

brings up for review the nonfinal order denying the motion for a

change of venue because it “necessarily affects” the final order (CPLR

5501 [a] [1]; see Matter of Aho, 39 NY2d 241, 248; Paul v Cooper

[appeal No. 2], 100 AD3d 1550, 1552).

We agree with respondents, however, that the motion was properly

denied because the court did not have the authority to change venue in

this proceeding seeking discharge under Mental Hygiene Law § 10.09. 

Section 10.09 does not include any provision for a change of venue,

but section 10.08, which sets forth procedures for article 10

proceedings, provides as follows: “At any hearing or trial pursuant

to the provisions of this article, the court may change venue of the

trial to any county for good cause, which may include considerations

relating to the convenience of the parties or witnesses or the

condition of the respondent” (§ 10.08 [e] [emphasis added]). 

Petitioner contends that venue may be changed for any hearing or trial

in an article 10 proceeding, whereas respondents contend that venue

may be changed only for a trial. We agree with respondents. The

statute is not ambiguous, and it “clearly and distinctly” shows the

legislative intent (McKinney’s Cons Laws of NY, Book 1, Statutes § 76;

see § 94). The legislature made a distinction between the terms

“hearing” and “trial” in the first phrase of the statute, but only

included “trial” when discussing a change of venue. The legislature’s

omission of the term “hearing” when discussing a change of venue does

not render the statute ambiguous but, rather, such omission

establishes the legislature’s intent to restrict a change of venue to

trials only. 

Petitioner next contends that the court erred in finding that he

waived his right to an annual review hearing. Petitioner contends

that, while he waived his right to be present at the hearing, he did

not waive his right to the hearing itself. Mental Hygiene Law § 10.09

(d) provides, in relevant part, that the court shall hold an

evidentiary hearing as to the retention of the offender if it appears

from the submissions under section 10.09 (c) “that the [offender] has

petitioned, or has not affirmatively waived the right to petition, for

discharge . . . .” Section 10.09 (c) lists the materials that the

Commissioner forwards to the court, including the notice and waiver

form. Here, as noted earlier, petitioner indicated on the annual

notice with waiver form that he did not wish to waive his right to

petition for discharge. On the date scheduled for the hearing,

however, petitioner did not appear, prompting the court to ask

petitioner’s counsel, “[H]e didn’t want to come and he doesn’t want

his hearing?” (emphasis added). Counsel responded, “Right.” Section

10.09 (d) specifically contemplates that an offender may waive the

right to petition for discharge, and we conclude that, through
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CA 11-02111 

counsel, petitioner waived that right.

We reject petitioner’s contention that he received ineffective

assistance of counsel. “[B]ecause [a sex offender] is subject to

civil confinement, the standard for determining whether effective

assistance of counsel was provided in criminal matters is applicable

here” (Matter of State of New York v Carter, 100 AD3d 1438, 1439). 

Based on our review of the record, we conclude that petitioner

received meaningful representation (see generally People v Baldi, 54

NY2d 137, 147). We have considered petitioner’s remaining contentions

and conclude that they are without merit.

Entered: May 3, 2013 Frances E. Cafarell

Clerk of the Court