Respondents in these cases are the subjects of sex offender civil management petitions pursuant to Article 10 of the Mental Hygiene Law. On April 17th, April 21st and April 28th 2008, the State moved to transfer the venue of these proceedings from New York County, where they are currently located, to the jurisdictions where the crimes committed by the offenders in these cases occurred. Specifically, the State moves to transfer venue in the K.B. matter from New York County to Chemung County, in the F.Y. matter from New York County to Oswego County, and in the K.A. matter from New York County to Ulster County.

Although each of these motions was brought separately and these cases have not been formally consolidated, the legal issues, procedural history, counsels for the parties and many of [*2]the factual issues in these motions overlap. The court is thus ruling on all of these motions in this one decision and order. For the reasons stated below, the change of venue motions brought by the State in these cases are denied^[FN1].

Procedural History

These cases all arose pursuant to a unique procedural history. In the fall of 2005, after failing to achieve passage of legislation to provide for the civil commitment of convicted sex offenders for a number of years, Governor Pataki charged state officials to "push the envelope" and use the provisions of the existing Mental Hygiene Law to civilly confine convicted sex offenders whose prison terms were ending. See State of New York ex rel. Harkavy v. Consilvio, 10 Misc 3d 851, 853 (New York County 2005), rev'd, 29 AD3d 221 (1st Dep't 2006), rev'd, 7 NY3d 607 ("Harkavy I").

Twelve convicted sex offenders were confined at the conclusion of their prison terms at the Manhattan Psychiatric Center between September 23 and October 21, 2005 pursuant to this directive. The Governor relied upon M.H.L. § 9.27(a) for these actions, which authorizes the involuntary confinement of persons who are mentally ill, in need of involuntary care and treatment and pose a danger to themselves or society. Some of these first twelve offenders were later transferred to the Kirby Forensic Psychiatric Center also located in New York County.

The Deputy Director of Mental Hygiene Legal Services petitioned for a writ of habeas corpus seeking the release of the offenders. The trial court granted the writ based on procedural errors the trial court found had been made in committing the offenders and based on the trial court's finding that the Petitioners had been deprived of their due process protections and were being illegally detained. 10 Misc 3d at 857. The Court ordered the Petitioners released unless additional psychiatric examinations in compliance with the statute and other appropriate procedural steps were followed. The Appellate Division reversed the trial court's decision and dismissed the habeas corpus petition. The Court of Appeals then reversed the Appellate Division's decision, but fashioned a more limited remedy for the Petitioners than the trial court had originally imposed. With respect to the Petitioners, retention hearings under Article 9 of the Mental Hygiene Law were ordered, but no other relief for those individuals was granted. Respondent K.B. is part of this Harkavy I group.

A second group of seven offenders whose prison terms were completed were placed at the Kirby Forensic Psychiatric Center in New York County between November 4th and December 20th, 2005, using procedures similar to those which had been used for the Harkavy I [*3]petitioners^[FN2]. See State of New York ex rel. Harkavy v. Consilvio, 11 Misc 3d 1053(A) (New York County 2006), rev'd, 34 AD3d 67 (1st Dep't 2006), rev'd, 8 NY3d 645 (2007) ("Harkavy II").

In Harkavy II, habeas corpus petitions were again brought on behalf of the detained sex offenders. The trial court again sustained the petitions and ordered expeditious hearings to determine if confinement under Article 9 was warranted. The Appellate Division again reversed the trial court's determination and dismissed the petitions. The Court of Appeals again reversed the Appellate Division but fashioned a different remedy than either the trial court had fashioned or the Court of Appeals had ordered in determining Harkavy I.

The Court ordered that the Harkavy II petitioners be subject to all of the required procedures under Article 10 of the Mental Hygiene Law which had become effective on April 13th, 2007, after the Harkavy II petitions had been filed but prior to the time the Court of Appeals decided Harkavy II. The Court noted that although Article 10 of the Mental Hygiene Law was enacted subsequent to the placement of the Harkavy II respondents at the Kirby Forensic Psychiatric Center under Article 9 of the Mental Hygiene Law, the Harkavy I and Harkavy II respondents were explicitly designated as subject to Article 10 of the Mental Hygiene Law by the terms of the statute. 8 NY3d at 652 (citing M.H.L. §10.03 [g] [5]).

In its Harkavy II decision, which was rendered on June 5, 2007, the Court also expressed its concern that the proceedings in the Harkavy II cases move forward promptly. ("Since petitioners have been confined to an OMH facility since late 2005, we trust that the parties will conduct the required proceedings expeditiously, as article 10 directs") 8 NY3d at 652. Respondents K.A. and F.Y. are part of this Harkavy II group.

The State commenced each of the actions at issue here in New York County more than 2 ½ years ago, initially, pursuant to Article 9 of the Mental Hygiene Law and later under Article 10. Respondents have been confined in New York County where the cases have continued to be venued since that time. Prior to moving to change venue in these motions in April of this year, no motions for a change of venue had been made by either the State or the Respondents in these cases. A trial date has not yet been set in any of these actions.

Statutory Framework

The Sex Offender Civil Management statute contains two distinct change of venue provisions. The first, not directly at issue here, concerns how venue is initially established in these proceedings. It provides that when the Attorney General elects to file a sex offender civil management petition, the petition shall be filed where the offender is located. M.H.L. §10.06(a). Venue for offenders who are incarcerated or confined in a mental health facility when a petition is filed thus lies initially at the location where the facility housing the offender is located, regardless of where the offender's sex offense was committed.

Respondents may then file a "notice of removal" in this original court transferring the case as-of-right to the county where the respondent was convicted of a sex offense. The Attorney General may then move, before the same original court, to retain venue in the court of original jurisdiction. The Attorney General's venue retention motion shall be granted if "good [*4]cause" (not otherwise defined by the statute), exists. All of these motions are regulated by strict time requirements. M.H.L. §10.06(b)^[FN3].

The court in which a petition for sex offender civil management is pending must conduct a hearing to determine if probable cause exists to believe the respondent is a sex offender in need of civil management. M.H.L. §10.06(g). If probable cause is found, a trial must then be held before the same court which conducted the probable cause hearing unless a motion for a change of venue has been made by the State or the respondent and the motion has been granted. M.H.L. §10.07(a). It is the venue change motion referenced in this section and defined in a subsequent section of the statute which is at issue here.

This venue provision is significantly simpler than the statute's initial venue setting provisions. It provides that "[a]t any hearing or trial pursuant to the provisions of this article, the court may change the 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". M.H.L. §10.08(e). The "convenience of . . . witnesses" ground under Article 10 is strikingly similar to one of the grounds for a change of venue which may be asserted under the Civil Practice Law and Rules (C.P.L.R.). Under the general C.P.L.R. venue change provision, the court upon motion may change the venue of a trial, among other grounds, where "the convenience of material witnesses and the ends of justice will be promoted by the change." C.P.L.R. §510(3). Unlike the venue change provision at issue here, this C.P.L.R. provision requires that a motion be made "within a reasonable time after commencement of the action." C.P.L.R. §511(a).

In the consideration of these motions, it is also important to understand where venue would continue to lie in cases where an offender was found subject to civil management. Unlike a criminal proceeding, courts adjudicating Article 10 cases retain jurisdiction over the details of a respondent's custody, supervision and treatment as long as the offender is subject to civil management, a period which may last for an offender's entire lifetime and extend over multiple decades.

An offender who is found subject to civil management after trial (or pursuant to an agreed-upon disposition) is subject to one of two possible dispositions made by the court. If the offender is found by the court to be a "dangerous sex offender requiring confinement", the offender is placed in a secure mental health facility. If such a finding is not made, the offender is deemed "a sex offender requiring strict and intensive supervision" and the court then imposes supervision conditions upon the respondent. M.H.L. §10.07(f).

Offenders who are found to be "dangerous sex offenders requiring confinement" after having a civil management petition granted and thus confined to a mental health facility are entitled to annual hearings to determine if continued confinement is necessary. M.H.L. §10.09. Those hearings, which may continue for the remainder of an offender's life, are conducted by a court in the jurisdiction where the offender is housed. M.H.L. §10.09. If the location where an offender is housed while confined is the same location where the offender's trial took place, then the court which tried the offender will have continuing jurisdiction over the respondent. If the respondent is housed in a different venue, however, the case will be transferred to that new [*5]location. Since the Office of Mental Health will determine where respondents are placed, that office will effectively also determine, at least in the first instance, which jurisdictions will preside over required annual retention hearings.

For offenders placed on "strict and intensive supervision", a different result occurs. These offenders are placed under the jurisdiction of the trial court, which has the responsibility for continuing supervision of the offender. That court may revise supervision conditions or revoke supervision and subject an offender to confinement under appropriate circumstances. M. H. L. §10.11. The trial court which imposes supervision conditions, however, may be in a different jurisdiction than the location where an offender resides.

A still different result will occur where an offender is initially subject to confinement but then ordered by a court to be released to strict and intensive supervision. In that case, the court which ordered the release (the court where the offender was confined) would, in the absence of any venue change, appear to be responsible for the continued supervision of the offender, even if the offender was released to reside in another jurisdiction. M.H.L. §10.09(h).

The question would then arise as to whether the venue provision at issue in this motion might also be used after a trial had been completed and an offender had been found subject to civil management to transfer the supervision of an offender from the jurisdiction where supervision would otherwise lie to a different jurisdiction. The statute appears to contain an ambiguity on this point. It provides, as noted supra, that "[a]t any hearing or trial pursuant to the provisions of this article, the court may change the venue of the trial to any county for good cause. . ." (emphasis added). While the beginning portion of this sentence appears to contemplate a venue change for a hearing or for a trial, the latter part of the sentence appears to limit venue change motions to trials and could arguably be read to foreclose the transfer of venue for the purpose of conducting a hearing, for example, on whether an offender was complying with the terms of strict and intensive supervision.

Respondents in the Instant Motions

Respondent K.B. was convicted of one count of Sexual Abuse in the Third Degree in 1980, one count of Sexual Abuse in the First Degree in 1984 and Sodomy in the First Degree in 1993. He was sentenced on the latter conviction to an indeterminate term of incarceration of 6-12 years. K.B. was conditionally released in October of 2001 but violated his parole by possessing pornography. He was then reincarcerated and subsequently transferred to the Manhattan Psychiatric Center, as noted above, at the completion of his sentence in 2005. See State v. K.B. Index No. 406721-07 (New York County Supreme Court, January 30, 2008, Bransten, J.).

On October 16, 2007, the State filed a civil management petition concerning K.B. On January 30, 2008, New York County Supreme Court Justice Eileen Bransten found probable cause to believe that K.B. was a sex offender requiring civil management and held that he should not be released pending trial. With respect to Respondent K.B., the State asserts that venue should be moved to Chemung County because all of Respondent's crimes were committed in Chemung County and at least one of the victims of Respondent's crimes continues to reside in Chemung County. It is also asserted that Chemung County is the location where the Respondent has the greatest ties, having grown up there.

F.Y. was convicted of Sexual Abuse in the First Degree in Oswego City Court in Oswego, New York in 1992. He was convicted of four counts of Sexual Abuse in the First [*6]Degree and four counts of Endangering the Welfare of a Child in 2001. F.Y. received an indeterminate sentence of imprisonment for this latter conviction of 4-8 years. Like the other respondents at issue here, F.Y. was originally transferred to the Kirby Forensic Psychiatric Center at the conclusion of his prison term in late 2005. A petition alleging that Respondent F.Y. was a detained sex offender requiring civil management under Article 10 of the Mental Hygiene Law was filed in New York County on October 23, 2007. On February 13, 2008, New York County State Supreme Court Justice Eileen Bransten found probable cause to believe that F.Y. was a sex offender requiring civil management and also found that he should not be released pending trial.

With respect to respondent F.Y., the State asserts that good cause exists to change venue to Oswego County, where it is asserted that the Respondent's crimes were committed and Respondent has the greatest ties, having been raised there. The State asserts that the vast majority of the potential trial witnesses reside in Oswego County and include police personnel and others involved in the investigation of Respondent's crimes. It is also alleged that prison personnel who worked with Respondent work in correctional facilities in Western and Central New York and that the Respondent participated in a sex offender treatment program at the Collins Correctional Facility in Western New York.

K.A. was convicted in 1982 of two counts of Sodomy in the First Degree, three counts of Sexual Abuse in the First Degree, one count of Sodomy in the Second Degree and one count of Sodomy in the Third Degree. He was sentenced to 15 to 30 years in state prison and served 23 years before being detained in a psychiatric facility as part of the Harkavy II group of offenders. See State v. K.A., 18 Misc 3d 1116(A) (New York County 2008) (finding probable cause to believe K.A. was a sex offender requiring civil management).

A petition for sex offender civil management was filed on October 16th, 2007. New York County Supreme Court Justice Eileen Bransten found probable cause to believe that K.A. was a sex offender requiring civil management and that K.A. should not be released pending trial on January 16th, 2008. With respect to respondent K.A., the State asserts that good cause exists to transfer venue to Ulster County, where it is alleged that Respondent lived "for years at the time of the underlying numerous offenses" he committed and has the greatest ties^[FN4].

CONCLUSIONS OF LAW

The phrase "good cause" under the venue provision at issue here lists three non-exclusive examples of issues which can be considered in making a venue change determination under the statute. They are the convenience of the parties, the convenience of witnesses and the condition of the respondent. M.H.L. §10.08(e).

Convenience of Witnesses

With respect to the convenience of witnesses factor, the Court finds that the State has not made the evidentiary showing which is required by law for the Court to make a determination that this factor weighs in favor of granting the State's motion.

As noted above, the "convenience of witnesses" ground for a change of venue under Article 10 is strikingly similar to one of the grounds for a change of venue under the C.P.L.R. [*7](§510[3]), which provides that the "convenience of material witnesses" and "the ends of justice" may provide a basis to change venue under the C.P.L.R. (emphasis added). In these motions, both the State and the Respondents cite to cases decided under the general C.P.L.R. venue provision to argue that this factor weighs in favor of granting or denying the instant motion.

Under C.P.L.R. §510(3), it is well settled that "[a] change of venue based on the convenience of witnesses may only be granted after there has been a detailed evidentiary showing that the convenience of nonparty witnesses would in fact be served by the granting of such relief". Jacobs v. Banks Shapiro Gettinger Waldinger & Brennan, LLP, 9 AD3d 299 (1st Dep't 2004) (citations omitted).

Four criteria should generally be met by the moving party in such motions. First, the affidavit in support of the motion must provide the names, addresses and occupations of the witnesses. Second, the moving party must disclose the facts the witnesses will testify to, so the trial court can determine whether the testimony would be necessary or material. Third, the movant must show that the witnesses are in fact willing to testify. Finally, there must be a showing as to how the witnesses would in fact be inconvenienced if venue were not changed. O'Brien v. Vassar Brothers Hospital, 207 AD2d 169, 172 (2d Dep't 1995); accord, Costanzo v. Cornell, 175 AD2d 696, 572 (1st Dep't 1991). The First Department, in addition, has held that a movant must show that prospective witnesses have been contacted and are available and willing to testify. Cardona v. Aggressive Heating, 180 AD2d 572 (1st Dep't 1992).

The State in these motions cites cases decided under C.P.L.R. §510(3) to argue that venue should be changed in these Article 10 cases, inter alia, because of the convenience of potential government employee witnesses. See, e.g., Chimirri v. Evergreen America Corporation, 211 AD2d 743 (2d Dep't 1995); Professional Vehicle Leasing, Ltd. v. Continuing Developmental Services, 275 AD2d 313 (2d Dep't 2000). The State simultaneously argues, however, that the evidentiary standards which were met by the movants in these cited cases and must be met by movants in all venue change motions under C.P.L.R. §510(3) should not be applicable in these Article 10 proceedings.

It is undisputed that in these motions, the State has not satisfied any of the evidentiary showings which would be required under the C.P.L.R. They have not identified the name of a single specific witness who would be inconvenienced if venue were not changed in these cases. They have not provided any specific information as to what any of these prospective witnesses would testify to if called at trial. With one exception they have not indicated that they have contacted any witnesses to ascertain their current locations or availability^[FN5]. They have not specifically indicated how any potential witnesses would be inconvenienced if required to testify in these proceedings.

Rather, the State generally asserts that categories of witnesses, for example, police officers, correctional personnel, doctors or crime victims, whom the state believes or speculates are in far flung locations and stand ready and able to provide relevant and admissible testimony [*8]would likely be significantly inconvenienced if these proceedings were not transferred to new venues. The State makes the logical argument that the location where the crimes were committed in these cases, even decades after some of these crimes were committed, may continue to house witnesses who will present relevant testimony. They further argue that although the standard for transferring venue in an Article 10 case by virtue of witness convenience essentially mimics the standard provided under the C.P.L.R., the C.P.L.R. standard should not be applicable in these cases. Rather, they argue that the kind of summary assertions they have put forward here should be sufficient for the court to find that the convenience of witnesses would be facilitated by a venue transfer.

C.P.L.R. §101 provides that the C.P.L.R.'s provisions "shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute." Given that Article 10 contains its own detailed venue provisions, in the view of this Court, it is clear that venue change determinations under Article 10 are governed by Article 10, rather than the C.P.L.R.'s general change of venue provisions. It is also clear in this Court's view, however, that the well-established requirements for moving venue based on witness convenience applicable under the C.P.L.R. are also applicable under Article 10.It is well-settled under New York law that "words having a precise and well-settled legal meaning in the jurisprudence of the state are to be understood in such sense when used in statutes, unless a different meaning is plainly indicated." (McKinney's Cons. Laws of NY, Book 1, Statutes § 233); People v. Reed, 265 AD2d 56, 66 (2d Dep't 2000), lv. denied, 95 NY2d 838.

Here, there is no indication on the face of the Article 10 statute or its legislative history that the legislature, in enacting Article 10, intended to abrogate the well-settled evidentiary requirements applicable to change of venue motions based on witness convenience. Indeed, as noted supra, the legislature used virtually the same phrase to describe this consideration in Article 10 ("convenience of . . . witnesses") as the phrase contained in the C.P.L.R. ("convenience of material witnesses"). At the time Article 10 was enacted, the evidentiary requirements for venue change motions based on witness convenience under the C.P.L.R. had been well-settled for more than a decade. It should be assumed that "in drafting the statute, the Legislature understood and adopted that well-settled meaning" Reed, supra, 265 AD2d at 66, citing People v. Mateo, 93 NY2d 327.

The conflicting arguments which have been made by the State and the Respondents in these motions, moreover, provide a compelling demonstration of why the C.P.L.R.'s evidentiary venue requirements are essential in Article 10 cases. In K.A., while the State asserts that relevant witnesses, including crime victims, reside in Ulster County where the Respondent's crimes were committed, the Respondent asserts that these crime victims resided in New Jersey when the crimes were committed 27 years ago and that there is no information which has been presented about where they might reside today. Respondent also asserts that K.A. lived in Ulster County for approximately only one year and resided there primarily on weekends. See Transcript of oral argument in K.A., May 2, 2008 at 15, 20.

Similarly, in the F.Y. case, the State and the Respondents disagree about where the Respondent may have received a sex offender treatment program (three possible correctional facilities are listed in the State's and Respondent's motion papers) and how close any of these facilities might be to Oswego County. The State asserts that witnesses who were employed at [*9]correctional facilities in upstate New York would be called to testify about Respondent's disciplinary infractions. The Respondent asserts that these infractions involved only the act of obtaining a tattoo and being out of place on one occasion when inmates were counted and that such testimony would be inadmissible in this Article 10 proceeding. It is not clear where any of these potential witnesses might be located or if they would be available to testify. See Affirmation of Assistant Attorney General Anthony Miller, April 17, 2008; Affirmation of Respondent's Counsel, Donald Graham, April 28, 2008.

Respondents assert that various physicians, whom they have named, who have treated or evaluated the Respondents are located in close proximity to New York County and would be inconvenienced by having to travel to the locations where the State is moving to transfer venue. That is, while some of the witnesses relevant to the commission of Respondent's crimes may, even decades after these crimes were committed, continue to reside in those jurisdictions, witnesses who can testify about the current condition of the Respondents are located in proximity to New York County.

More generally, in all three of the instant cases the State and the Respondents disagree about the extent to which testimonial evidence concerning Respondents crimes (rather than Respondent's current condition) would be relevant or admissible^[FN6]. Obviously, Article 10 proceedings are unique and the issues a court must consider in deciding a venue change motion in these proceedings differ from the kind of regulatory, contract or tort claims under which C.P.L.R. venue change motions are often decided. In the view of this Court, however, the policy reasons behind the detailed evidentiary requirements of the C.P.L.R. are even more compelling in these Article 10 proceedings. Article 10 is a new statute where appellate courts have not yet had the occasion to rule upon virtually any of the fundamental controversies which are repeatedly arising under the law. As the venue change motions in these cases make clear, the State and Respondents have fundamentally differing views about the kinds of evidence which may be introduced in these proceedings.

Courts considering venue change applications premised on the convenience of witnesses must of necessity make at least some preliminary determinations about which witnesses or kinds of witnesses might be allowed to testify in Article 10 trials in order to determine whether any those witnesses might be inconvenienced by retaining venue in current locations. At a [*10]minimum, however, the court should know with at least as much specificity as a regulatory, tort or contract claim who these witnesses are and what they might testify about.

Finally, the State makes the valid point that they should not have to publicly identify which crime victims might want to testify at these proceedings as part of their venue change applications. Article 10 mandates strong confidentiality protections for crime victims. Psychiatric examiners acting on behalf of respondents are not entitled to victim information absent a court order for good cause shown. M.H.L. §10.08(b). Documents provided by the State to respondents for Article 10 proceedings must redact victim identifying information and the statute provides no authority to a court to modify that requirement. M.H.L. §10.08(d). Respondents may not subpoena victims to testify at Article 10 proceedings absent a court order for good cause shown. M.H.L. §10.08(g).

The crucial confidentiality protections provided to crime victims under Article 10 could easily be accommodated, however, by issuing a protective order to shield any victim identifying information in a venue change motion or requiring that such information be provided to the court in-camera. Indeed M.H.L. §10.08(d), cited above, would appear to require such a procedure if information about crime victims was provided by the State in connection with a venue change motion. The State has not moved, however, to invoke any of these possible protections. Rather, they have taken the position that to prevail on this motion, they are simply not required to provide any specific information about crime victims or other witnesses who might be inconvenienced by retaining venue in its current location.

As one commentator has noted: "Countless motions to change venue pursuant to C.P.L.R. §510(3) are denied on a daily basis simply because of the movant's failure to provide the necessary information demanded by the . . . . case law". McKinney's Practice Commentaries to C.P.L.R. §510(3), Vincent Alexander, at 2 (2008). Absent the required evidentiary showing, this court's determination to move venue for the convenience of witnesses in these cases "could only be based on speculation" Jacobs, supra, 9 AD3d at 300.

Condition of the Respondent

With respect to the condition of the respondent, that factor obviously weighs in favor of denying the State's motion for a change of venue. There is no dispute that a change of venue in these cases would sever the attorney-client relationship between each of the Respondents in these cases and their attorneys, a relationship which has been in effect with each relevant counsel in each of these cases for two years or more.^[FN7]

"Involuntary civil confinement may entail indefinite confinement, [which] could be a more intrusive exercise of state power than incarceration following a criminal conviction'" Mental Hygiene Legal Service v. Spitzer, ___ F. Supp.3d ___, 2007 WL 4115936, at 7(S.D.NY Nov. 16, 2007), quoting Project Release v. Prevost, 722 F.2d 960, 971 (2d Cir. 1983). Moreover, the focus of the adjudicatory proceedings in the instant cases does not primarily [*11]concern whether or not a crime was committed or whether or not some other factual event occurred. It will primarily focus on the mental condition of the Respondents themselves — whether they suffer from a mental abnormality, whether they have a strong predisposition to commit sex offenses and whether they have an inability to control their behavior.

It is obviously essential that Respondents receive meaningful representation at all of the material stages of these proceedings indeed given the focus of these proceedings on the mental condition of the Respondents, those considerations are arguably even more significant than those arising during a criminal trial. Severing the attorney\client relationships in these proceedings after 2 ½ years would obviously have a negative impact on the legal representation of the Respondents^[FN8].

Transferring venue at this late date would also raise a closely related problem which is recurring in Article 10 cases where the Respondents would be housed during further proceedings in these cases. Two possibilities would exist. First, Respondents could remain in New York County. In that event, they would by physically separated from their new attorneys. In the case of F.Y. (proposed transfer to Oswego County) and K.B. (proposed transfer to Chemung County) Respondents would be separated from their new attorneys by hundreds of miles.

Alternatively, Respondents could be transferred by the State to a new "Secure Treatment Facility" (See M.H.L. §10.03[o]) in a location closer to the new venues. In that case, Respondents would move from a treatment program they had been subject to for the past 2 ½ years and resume treatment in a new venue with new treatment providers who would presumably have no direct knowledge or experience with their conditions^[FN9]. The problems arising from such respondent placement issues have spawned disputes, litigation and delays in other Article 10 cases^[FN10]. If venue were not changed, on the other hand, none of these issues would arise. [*12]

Even apart from any delay which might be occasioned by such placement issues, transferring venue in these cases would necessarily result in additional delays of undetermined length. In addition to the transfer process itself, new counsel for both parties would have to be assigned and given time to familiarize themselves with the cases. The Court of Appeals, as noted above, indicated over a year ago that the cases at issue in these motions should proceed expeditiously and yet no trial dates have yet been set in any of them. It is clear that the extensive delays which have already occurred in these cases would become even more pronounced if venue were transferred at this late juncture^[FN11].

Convenience of the Parties

The convenience of the parties consideration provided in the venue statute obviously overlaps with the "convenience of witnesses" consideration, since a party will presumably find it most convenient to try a case in the location where most of their witnesses are located. With respect to the convenience of the parties, however, it is clear that this interest weighs in favor of denying the State's motion for a change of venue. Obviously, the State by bringing these motions asserts that it would be more convenient for the State to try these cases in the jurisdictions where the offender's crimes had been committed. Other factors present here argue, however, that the convenience of the parties (as opposed to the witnesses) would be best served by denying the venue transfer motions at issue here.

The state is represented in each of these cases by the State Attorney General. The respondents in each of these cases are represented by Mental Hygiene Legal Services. While the Attorney General has offices throughout the state, the attorneys who have been handling these matters until now are located in New York County. The attorneys for Mental Hygiene Legal Services who are representing the respondents are similarly located in New York County. The Respondents in each of these cases, as noted supra, have likewise been located in New York County since the fall of 2005.

Additional Venue Change Considerations

While the venue change statute at issue in these motions notes three factors the court may consider in making venue change determinations, those considerations, as noted above, are not exclusive. Rather, venue may be moved upon any basis if "good cause" is shown. The State makes a number of closely related arguments about why good cause exists to move venue in these cases apart from the three non-exclusive factors discussed above. These arguments can in turn be usefully broken down into three closely related considerations.

First, it is argued that apart from any practical or legal arguments which may exist, venue should be transferred to the locations where the Respondents crimes were committed because these communities have the greatest interest and stake in adjudicating these matters. Put simply, it makes more sense to try these cases in the communities where these crimes occurred than in a far flung location whose primary connection to the case is that the Respondent happens to be housed there. [*13]

The second closely related consideration is more practical and arises from the fact that were any of the Respondents in these cases found to be in need of civil management, one possible disposition the court would be entitled to impose would be a regimen of strict and intensive supervision and treatment ("SIST"). Since Respondents would likely return to their home communities under such a regimen, the State argues, the trial court in New York County would then be in the position of making a determination about whether or not each of these Respondents would be released to supervision in a jurisdiction far away. Such decisions, the State argues, would more appropriately be made by a judge in the jurisdiction the Respondent returned to, who would be more attuned to local conditions, more able to judge whether or not SIST was appropriate and better able to establish the precise parameters of a SIST regime.

This argument, however, assumes a series of contingent events which may or may not ever occur in any of these cases. The argument assumes that each Respondent will be found to be in need of civil management. The argument further assumes that the Respondents will then be placed on SIST rather than confined. Most significantly, the argument presupposes that an offender who is placed on SIST will return to the community where his crimes were committed rather than some other location to live.

In the first place, it is not clear that any of the Respondents in any of these cases would ever seek to return to those communities. Indeed, counsel for the Respondent in K.B. at oral argument asserted that the Respondent has no desire to return to Chemung County (Transcript of oral argument in K.B., May 9, 2008 at 11-12). More importantly, upon being placed on SIST, it will be up to the Court not the Respondents, to determine where each Respondent will live if released to supervision. SIST is intended to provide a regimen of close monitoring, supervision and treatment which in its scope and intensity is unprecedented in New York law. See M.H.L. §10.11(a)(1). Among the many other conditions which may be imposed by the court, after receiving recommendations from the Division of Parole, are "specification of residence" as well as "prohibition of contact with identified past or potential victims". Id. That latter factor would argue that respondents might be better placed under supervision away from the locations where the victims of their crimes might reside not in the same communities they offended in. This consideration might be particularly important if the place where an offender's crime had been committed was a small community where the likelihood that an offender might encounter a past victim was greater.

A critical factor which the Court considering the imposition of SIST may want to consider as well is where an offender might receive the most effective supervision and treatment. It might well be, for example, that even if any of the Respondents here wanted to return to the localities where their crimes were committed for SIST, that a different venue might provide a more effective supervision, treatment and management regime.

Finally, the State makes the additional practical argument that were the Respondents in the instant motions placed on SIST in the communities where their crimes had been committed, a court in New York County, located far away, would be hard pressed to monitor that supervision and sanction any violations. In addition to all of the other contingencies noted above, however, this argument presupposes something additional about the scope of the venue statute at issue in these motions it assumes that a court imposing SIST would not be empowered to transfer SIST supervision to a court where an offender resided.

This argument goes back, again, to the fact that the statute is ambiguous on this point. As [*14]noted above, the venue statute at issue in this motion (M.H.L. §10.08[e]) can be read as either allowing a venue transfer for any hearing (including, presumably a hearing to determine whether or not SIST had been violated) or, alternatively read more narrowly to limit venue transfers for trials only. One of these two readings, in the view of this Court, is logical and comports with the goals of the statute. The other would render the effective operation of the law increasingly problematic.

As noted above, courts will retain jurisdiction over civil management cases for as long as offenders are confined or subject to SIST, a period which may last decades, even as long as 50 years or more. Under the more restrictive reading of the statute outlined here, once a trial had occurred, a court would be powerless, under any circumstance, to transfer the venue of a proceeding ever again. So, for example, if an offender subject to SIST initially resided outside or were permitted to move outside the jurisdiction of the court which imposed SIST, that court would be powerless to transfer venue for purposes of continued monitoring, even upon the consent of the parties. A court would likewise be powerless to transfer the venue of an annual review hearing for a confined offender under any circumstance.

This constricted reading of the law, however, would frustrate its purpose of societal protection because it would hamstring courts from effectively monitoring and supervising offenders. "It is a fundamental rule of statutory interpretation that of two constructions which might be placed upon an ambiguous statute one which would cause objectionable consequences is to be avoided. Stated in another way, the rule is that the construction to be adopted is the one which will not cause objectionable results or cause inconvenience, hardship, injustice, mischief, or absurdity". McKinney's Consolidated Laws of New York, Statutes, §141 (citations omitted). Here, in the view of this Court, the venue modification provision at issue here (M.H.L. §10.08 [d]) should be construed to allow a change of venue for any hearing under the statute, including a hearing to consider issues related to the continued monitoring of an offender under SIST.

In a broader sense all of the related arguments made by the State in these motions boil down to a simple proposition that, as a policy matter, it makes sense for civil management trials to be conducted in the jurisdictions where an offender's crimes have been committed. The arguments made by the State in these motions are the same arguments which might be made in any Article 10 proceeding.

That is, it will always be the case that, even without any particularized evidentiary showing, the locations where an offender's crimes were committed might continue to house witnesses who could testify regarding those crimes. It will always be the case that, in the event a court which imposed SIST was in a different location than an offender's previous home community and the offender was permitted to relocate to that previous home community, a court imposing SIST would be in a different location than where the offender resided. It will always be true that if this eventuality occurred, it would make little sense for the court which imposed SIST to continue to have jurisdiction over the respondent. Put another way, there is nothing, in this Court's view, in the generalized assertions and arguments put forward by the State in these motions which could not likewise be alleged in every other Article 10 case.

The face of the Article 10 statute, however, makes plain that the legislature carefully considered the policy issues being asserted by the State in these motions and resolved them through the initial venue setting provisions of M.H.L. §10.06(b) discussed supra. Those provisions provide a detailed procedural and substantive scheme for resolving the competing [*15]policy considerations inherent in adjudicating Article 10 cases in the venues where offenders are housed, or, alternatively, in the venues where the crimes offenders committed occurred. Those provisions, moreover, are concededly not available to the State in these motions because the requirements of that venue modification statute have not been complied with here. As further support for the proposition that the legislature carefully considered and addressed the policy considerations at the heart of the State's motions here, Respondents cite an extended statement made during the Assembly floor debate by the co-prime sponsor of the Assembly's civil management bill who defended the bill during the Assembly floor debate.

In this statement, the leader of the Assembly floor debate explained that the issue of whether to place venue for Article 10 proceedings where an offender was housed, or, alternatively, where an offender's crime had been committed had been negotiated by the legislature over an extended period of time, resulting in the enactment of the statute's initial venue setting provisions.^[FN12] A statement made by a legislator during a floor debate, if it is used at all in construing a statute, must be used with great caution since it may not be reflective of the views of all of the legislators who voted on a bill. However, such statements "may be accorded some weight in the absence of more definitive manifestations of legislative purpose". Majewski v. Broadalbin-Perth Central School District, 91 NY2d 577, 585-586 (1998) (internal quotations and citations omitted). Here, the statement cited by Respondents simply further illuminates what the statute makes plain that the issue of whether to venue Article 10 proceedings where an offender was housed or where an offender's crimes had been committed was carefully considered and addressed by the legislature.

In the view of this Court, the State is essentially asking that the Article 10 statute be construed to allow for the State (or perhaps the Respondents as well) to use M.H.L. §10.08(e) to move venue to the location where an offender's crime was committed in any case, since the same arguments the State is making here would apply in any Article 10 proceeding. This is precisely the issue which the legislature considered and resolved in M.H.L. §§10.06(a) & (b), however. To construe the statute as the State urges, in the view of this Court, would make the careful procedural scheme contained in M.H.L. §§10.06(a) & (b) a nullity, since a party could always make the same showing the State has made in the instant motions at any time and have venue transferred to the location where an offender's crime had been committed in any case. [*16]

The venue provision at issue in these motions, in the view of this Court, is of a wholly different character than the provision discussed immediately supra. M.H.L. §10.08(e), at issue here, in the view of this Court, contemplates a venue change not because it is better policy to conduct trials in the locations where an offender's crimes were committed, but on the basis of facts particular to a individual case. That is, having resolved the policy issues which inherently form the basis for the State's motions here in Article 10's initial venue setting provisions, the legislature went on to provide a catch-all additional venue shifting provision to address any cases in which a particularized showing of good cause had been made.

Under M.H.L. §10.08(e), for example, the State or Respondents might make a particularized showing in accordance with the evidentiary requirements outlined supra demonstrating that particular identified witnesses would be significantly inconvenienced without a change of venue. There will likely be few cases in future years in which a venue change motion is first made 2 ½ years after a respondent has been confined. There will be cases where parties consent to change venue. In some cases, an agreed-upon SIST determination may include a proviso that a respondent will live in a jurisdiction different than the one where a case is proceeding, which would argue that good cause existed to move venue to the jurisdiction where an offender would reside.

In the view of this Court, the State has not made the particularized demonstration of good cause required by the statute in these motions and indeed, as outlined supra, a number of countervailing considerations exist which argue that venue should not be changed in these cases. Whatever the merits of the policy arguments inherent in allowing the State or respondents to move venue to the location where an offender's crime had been committed may be, the statute, in this Court's view, simply does contemplate that those arguments, standing alone, constitute "good cause" to change venue. The State's motions in these cases, as noted above, are therefore denied.

So Ordered:

June 27, 2008

Daniel P. Conviser

A.J.S.C.