The Respondent is the subject of a petition for sex offender civil management. He was previously found after a jury trial conducted by Justice Nunez in Manhattan Supreme Court to be a Sex Offender Requiring Civil Management under Article 10 of the Mental Hygiene Law ("Article 10"). That judgment was affirmed by the Appellate Division but the Court of Appeals reversed the judgment and the case has been remanded to this Court for a new trial. See State v. Floyd Y., 22 NY3d 95 (2013). The State moves here to change the venue of that trial from New York County to Oswego County. This Court rejected the State's motion for the same venue change prior to the first trial. State v. K.B., et. al., 20 Misc 3d 1110 (A), 2008 NY SlipOp 51312 (U) (New York County Supreme Court 2008). The Court agrees with the State that changes in both the facts and the law relevant to the instant motion since this Court's 2008 decision warrant a de novo review of the State's current application. For the reasons stated infra, however,the State's motion is again denied.

STATEMENT OF FACTS

The Respondent has been confined by the New York State Office of Mental Health (OMH) awaiting a final adjudication of this case for more than 8 years. The details surrounding that long history are not all directly relevant here, but briefly, Mr. Y. along with other convicted sex offenders who had completed their prison terms were initially transferred by the State to the custody of OMH in 2005 through a process which the New York Court of Appeals subsequently found was unlawful. See State of New York ex rel. Harkavy v. Consilvio, 7 NY3d 607 (2006); State of New York ex rel. Harkavy v. Consilvio, 8 NY3d 645 (2007). A subsequent lawful petition against Mr. Y. under Article 10 was then filed by the State. The Court of Appeals noted [*2]in their 2007 decision in Harkavy, with respect the lawful petitions brought by the State against Mr. Y. and other respondents under Article 10 that "[s]ince 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. The subsequent venue change motion, trial, appeals and remand outlined supra then occurred.

Mr. Y. was confined at the Manhattan Psychiatric Center when the initial venue change motion was filed in 2008. However, he has been confined for most of the past four years at the St. Lawrence Psychiatric Center (SLPC) or the Central New York Psychiatric Center (CNYPC). SLPC is located in Ogdensburg, New York, 376 miles from New York City. CNYPC is located in the town of Marcy in Oneida County, 244 miles from New York City. Mr. Y.'s sex crimes were committed in Oswego County. Oswego, the county seat of Oswego County, is 290 miles from New York City. Oswego is also much closer to CNYPC and SLPC than it is to New York City.

The State did not present the testimony of any of the Respondent's victims or other fact witnesses during the first trial. It rather relied upon the testimony of two expert witnesses who outlined facts relevant to Mr. Y.'s alleged crimes against nine separate victims and provided other testimony relevant to his alleged Mental Abnormality under Article 10. The Respondent presented the testimony of one expert witness and two fact witnesses. With respect to five of Mr. Y.'s alleged victims, the Court of Appeals in Floyd Y. found the evidence elicited by the state sufficiently reliable to withstand due-process scrutiny. The Court found the evidence presented by the State with respect to three of Mr. Y.'s alleged victims to be unreliable hearsay which did not satisfy the requirements of due-process. With respect to the final victim, the Court said that there was "sufficient reliability" to weigh in favor of eliciting evidence of the Respondent's alleged sex crimes through an expert witness but that the "better course" would have been to present the testimony of a live witness. 22 NY3d at 109-110.

The State now asserts that all of Mr. Y.'s sexual offense victims are "potential witnesses" at the next trial.^[FN1] It says that the subject of the testimony of these witnesses has been previously detailed in materials turned over to Respondent's counsel. Regarding the location of these "potential" witnesses, the State avers that they "still reside significantly closer to Oswego County".^[FN2] The State also identifies three named "potential" witnesses who are state employees who treated the Respondent at CNYPC and one "potential" witness who is a probation officer who prepared the probation report with respect to the crime which forms the basis for the instant petition (the "Instant Offense"). Eight additionally named employees of CNYPC who the Respondent alleged mistreated him are named as potential witnesses. The State also details Mr. Y.'s extensive connections to Oswego County and its surrounding area through other aspects of his life. The State alleges that "all of Respondent's relationships, victims, offenses, supervision, courses of treatment and contacts with the criminal justice system emanate from Oswego County [*3]and its immediate area".^[FN3]

The State believes Mr. Y. will seek to be placed on Strict and Intensive Supervision and Treatment (SIST) if he is found to be a Sex Offender Requiring Civil Management and propose to live if placed on SIST in Saranac Lake, which is in Franklin County. Saranac Lake is 298 miles from New York City but 177 miles from Oswego. On the other hand, the doctors who testified at the Respondent's first trial, according to the State, were or are located in New York City.

The Respondent opposes the instant motion. In addition to arguing the general legal issues discussed infra, he also asserts that some of the witnesses the State indicates they might call during the trial would offer no useful testimony or could not be called. With respect to the State's assertion that it might call Mr. Y.'s treating doctors to testify at his next trial, the Respondent points out that the question of whether such testimony would be admissible has never been decided by the Court of Appeals and that the Respondent would contest the admissibility of such testimony. The testimony of the probation officer who prepared a presentence report with respect to the instant offense, the Respondent submits, would be cumulative of the details of the Respondent's crimes provided in the admissible transcript of the trial which resulted in his convictions. The Respondent argues that other testimony the State indicates it might present at the next trial would similarly be duplicative, tangential or concern issues which are not in dispute.

The Respondent also argues that he would be unduly prejudiced by a venue change because it would require the 8 year attorney-client relationship he has established with his counsels to be severed. Mr. Y.'s current attorneys are employed by Mental Hygiene Legal Services (MHLS), a legal services program funded through the Office of Court Administration which represents respondents in almost all Article 10 cases. Were venue transferred, Mr. Y. would apparently continue to be represented by MHLS. However, the Court takes judicial notice of the fact that Mental Hygiene Legal Services is not a unitary entity. Rather, as the Court understands the program, it operates separately in each of the State's four appellate divisions. Were venue transferred, Mr. Y.'s attorneys would no longer represent him. He would likely be represented by the MHLS office with jurisdiction over Oswego County. The Respondent also asserts that transferring venue now would result in a further delay in the case, while new attorneys for the Respondent familiarized themselves with the case and the transfer was effected.

Statutory Framework ^[FN4]

Article 10 contains two distinct venue change provisions. The first, not directly at issue here, concerns how venue is initially established. It provides that when the Attorney General elects to file a petition, the petition shall be filed where the offender is located. MHL §10.06 (a). Respondents may then file a "notice of removal" in this original court transferring the case as-of-[*4]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 that court. The Attorney General's venue retention motion shall be granted if "good cause" (not otherwise defined by the statute), exists. All of these motions are regulated by strict time requirements. MHL §10.06 (b)^[FN5].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. MHL §10.06 (g). 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. MHL §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.

The provision states 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". MHL §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 (CPLR). Under the general CPLR 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." CPLR §510 (3). Unlike the venue change provision at issue here, this CPLR provision requires that a motion be made "within a reasonable time after commencement of the action." CPLR §511 (a).

In considering 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. If the offender is found by the court to be a "Dangerous Sex Offender Requiring Confinement", the offender is placed in a secure OMH facility. If such a finding is not made, the offender is placed on SIST and the court then imposes supervision conditions upon him. MHL §10.07(f). Offenders who are confined are entitled to annual hearings to determine if continued confinement is necessary. MHL §10.09. Those hearings are conducted by a court in the jurisdiction where the offender is housed. MHL §10.09. SIST offenders are placed under the jurisdiction of the trial court, which is responsible for the offender's continuing supervision. MHL §10.11. The trial court which imposes supervision conditions, however, may be in a different jurisdiction than the location in which an offender resides. A still different result will occur where an offender is initially subject to confinement but then ordered released to SIST. 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. MHL §10.09 (h).

The question would then arise as to whether the venue provision at issue in this motion might also be used after an offender was found subject to civil management to transfer the offender's supervision from the jurisdiction where supervision would otherwise lie to a different jurisdiction. The statute is not clear on this point. It provides, as noted supra, that "[a]t any [*5]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 first clause of this sentence appears to contemplate a venue change for a hearing or 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 on whether an offender was complying with SIST conditions.

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. They are the convenience of the parties, the convenience of witnesses and the condition of the respondent. MHL §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 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 CPLR (§510 [3]), which provides that the "convenience of material witnesses" and "the ends of justice" may provide a basis to change venue. In this motion, both the State and the Respondent cite to cases decided under the general CPLR venue provision to argue that this factor weighs in favor of granting or denying the instant motion. Under CPLR §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 Dept 1995); accord, Costanzo v. Cornell, 175 AD2d 696, 572 (1st Dept 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 Dept 1992).

The State in these motions cites multiple cases decided under CPLR §510 (3) to argue that venue should be changed in these Article 10 cases, inter alia, because it would reduce the amount of time which state employee witnesses would be taken away from their jobs. See Chimirri v. Evergreen America Corporation, 211 AD2d 743 (2d Dept 1995); Professional Vehicle Leasing, Ltd. v. Continuing Developmental Services, 275 AD2d 313 (2d Dept 2000); Kennedy v. C.F. Galleria at White Plains. 2 AD3d 222 (1st Dept 2003); Lafferty v. Eklecco, 34 AD3d 754 (2d Dept 2006) . Indeed, in three of the four cases cited by the State, the exacting requirements a party seeking to change venue must meet which are outlined here are specifically listed. The State simultaneously argues, however, that the evidentiary standards which had to be met by the movants in these cited cases and must be met by movants in all venue change motions [*6]under CPLR §510 (3) should not be applicable in this Article 10 case.

It is undisputed that in this motion, the State has not satisfied the evidentiary showings which would be required under the CPLR. With respect to some witnesses, names and occupations are provided, but not addresses. With respect to the potential testimony of crime victims, the State has not provided any of the witnesses' names to the Court (see discussion infra.). More significantly, the State has not asserted that a single one of these witnesses would testify at the trial. All of the witnesses whom the State asserts provide a justification for changing venue are described only as "potential" witnesses. The State made similar unsupported assertions about the testimony of multiple witnesses prior to the first trial. When the trial actually occurred, the State did not present the testimony of any of these witnesses. On the other hand, that decision may have been influenced by the denial of the State's venue change motion and the law, after the Court of Appeals decision in Floyd Y., has made the imperative for the State to call some of these witnesses much greater.

Even in light of the holding of the Court of Appeals in Floyd Y., however,the contention that the State might, in fact, call dozens of fact witnesses at Mr. Y.'s upcoming trial, to this Court, seems implausible. For example, the notion that the State might call 8 identified staff members from CNYPC who Mr. Y. alleged committed violent acts against him, to help establish personality traits possessed by Mr. Y. which were apparently not in serious dispute during the first trial strikes this Court as, at best, highly unlikely. In any event, like other potential witnesses, CNYPC employees would be required to travel to testify even were the venue of this case transferred to Oswego County, although the travel distance which would be required (80 miles, according to the State) would be far less than the distance to New York City.

The State has not indicated that they have contacted any witnesses to ascertain their current locations or availability. It is not clear that any of the witnesses would in fact be available to testify. The State has not specifically indicated how any potential witnesses would be inconvenienced if required to testify, although the Court can readily surmise that witnesses who were located near Oswego County would have to travel to New York City to testify if the venue of this trial were not moved. Since the State has not yet apparently determined whether they would call any of the witnesses who are the subject of the instant motion, they have also not provided any specific details about what the witnesses would testify about so the Court could make a more informed judgment about whether such testimony would be admissible.

Indeed, the three expert witnesses who testified during the first trial, according to the State, have been or are based in the New York City area. They are the witnesses who, the Court submits, would be the most likely to testify at the next trial. The convenience of witnesses who are testifying only as experts is usually accorded no weight in venue change motions. See e.g., Hayland Farms Corp.v. Aetna Casualty & Surety Co., 89 AD2d 516 (1st Dept 1982) On the other hand, these witnesses normally account for the bulk or all of the testimony in Article 10 trials. The Court also notes that while the State, of course, is generally free to introduce as much admissible evidence as it can muster (subject to reasonable limitations on evidence the court considers duplicative or prejudicial) the State convinced twelve Manhattan jurors that the Defendant suffered from a Mental Abnormality during the first trial without calling any of the witnesses it now argues necessitate changing the venue of this case to Oswego County. The legal requirements in the next trial will be more exacting and the State will likely need to call [*7]additional witnesses at the next trial to establish the same facts it was able to establish through the testimony of expert witnesses alone at the first trial. But trying the case in Manhattan did not prevent the State from obtaining a favorable verdict before.

That is not to say that the State does not have valid arguments for transferring venue in this case. Some of the broad assertions the State makes about Mr. Y.'s contacts with Oswego County are clearly inaccurate. It is not literally true, for example, that "all of Respondent's . . . . supervision [and] . . . . courses of treatment emanate from Oswego County and its immediate area" (see citation supra). Mr. Y has been confined, treated or supervised in multiple OMH and correctional facilities outside the immediate area of Oswego County including St. Lawrence County, New York County, Oneida County and Erie County.^[FN6] It is obviously true, as the State asserts, however, that Mr. Y's contacts with Oswego County dwarf any connection he has to Manhattan. As noted supra, moreover, the landmark holding of the Court of Appeals in Floyd Y. has imposed significant new restrictions on the State's ability to present factual evidence about a Respondent's history through the testimony of expert witnesses.

During Mr. Y.'s first trial, the State alleged that Mr. Y. had committed sex offenses against nine different victims. With respect to five of those victims, the State could, as it did during the first trial, elicit the details of those crimes without calling the crime victims to testify. With respect to three of these alleged crime victims, however, the State during Mr. Y.'s next trial would apparently not be able to elicit the details of those offenses through the testimony of its experts and might be required to present the testimony of Mr. Y.'s victims or other fact witnesses. It is certainly possible that those victims continue to reside in or near Oswego County.^[FN7] Additional arguments for transferring venue because of witness convenience arise because Mr. Y. has been confined for the past four years in facilities which are much closer to Oswego than Manhattan. Employees of such facilities might be able to offer admissible evidence at his next trial and it could be expected that such witnesses would find Oswego a much more convenient venue than Manhattan.

The problem for the State is that, as in 2008, they have not alleged evidentiary facts sufficient to warrant the granting of their motion. As in 2008, they assert that they do not have to and that the case law interpreting the witness convenience factor under the CPLR is not applicable to the instant motion (except to the extent it supports the State's position). Rather, the State argues, the kind of summary and contingent assertions they have made here should be sufficient to find that the convenience of witnesses would be facilitated by a venue change. This Court did not find that argument persuasive in 2008 and finds the argument no more persuasive today.

CPLR §101 provides that the CPLR'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 [*8]regulated by inconsistent statute." Given that Article 10 contains its own detailed venue provisions, it is clear that venue change determinations under Article 10 are governed by Article 10 rather than the CPLR's general provisions. It is also clear in this Court's view, however, that the well-established requirements for transferring venue based on witness convenience applicable under the CPLR 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 Dept 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 CPLR ("convenience of material witnesses"). At the time Article 10 was enacted, the evidentiary requirements for venue change motions based on witness convenience under the CPLR 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 State cites three unreported trial court decisions in support of the view that Article 10's venue provisions are not governed by the case law interpreting the CPLR. This Court respectfully disagrees with those decisions. In contrast to the analysis outlined here, two of those courts reached their conclusions solely on the basis that Article 10 and the CPLR have distinct venue provisions. See State v. Houghton, Index # 13031 (Washington County Supreme Court, August 7, 2008 [Pritzker, J.]) ("the Court does not find CPLR Article 5 to be controlling. Rather, it is clear, that the legislature intended to include very distinct language in MHL Article 10 regarding venue".); State v. Mallory, Index #2766\08. (Dutchess County Supreme Court, June 10, 2008 [Pagones, J.]) ("It is significant that the legislature opted to include distinct venue provisions in MHL Article 10 instead of relying on CPLR Article 5 and existing case authority.") But, in this Court's view, the fact that Article 10 and CPLR Article 5 are different statutes does not answer the question of whether the well-established case law specifying the meaning of the term "convenience of witnesses" governs Article 10. When the Legislature uses a well-established legal term of art in a new statute, a trial court is not free to simply discard years of controlling case law interpreting the meaning of that term and create new legal standards out of whole cloth.

As this Court outlined in much more detail in its original decision in K.B., moreover, the reason the Legislature did not rely upon the venue change provisions of the CPLR when it enacted Article 10 had nothing to do with any desire to change the interpretation of the witness convenience factor. The Legislature created unique venue rules under Article 10 to resolve a debate about whether cases should be originally venued in locations where a crime was committed or locations where an offender was present when a petition was filed (normally a corrections or OMH facility). See, State v. K.B., 2008 NY SlipOp at 13-15 The resolution of that dispute, which the leader of the Assembly floor debate during the enactment of Article 10 [*9]described as "an issue of great importance during the negotiations" was the reason the statute was given its own venue rules. Id. at 14, n.12.That debate had nothing to do with the evidentiary requirements at issue here.

The State argues that, to the extent some of its witnesses may be crime victims, it cannot comply with the requirement that the identity of those witnesses be disclosed to the Court because Article 10 requires the identity of such witnesses to be kept confidential. That was also an argument which the Court found persuasive in the third unreported trial court decision cited by the State here, People v. Jeffrey M. Din., Index # CA2010-1976 (Oneida County Supreme Court 2010 [Tormey, J.]). But Article 10 does not require that the identity of the State's witnesses be kept secret from the court. MHL § 10.08 (b) (cited by the State) provides that victim identifying information should not be provided to psychiatric examiners absent a court order. MHL § 10.08 (d) (cited by the State) provides that such identifying information should not be provided to respondents.

The State would be perfectly entitled and indeed obligated in this motion to seek a protective order which prevented the disclosure of the names or addresses of crime victim witnesses from the Respondent. In this Court's experience, the State routinely seeks such protective orders in Article 10 cases in all kinds of applications. The State has not sought any such order here. Moreover, even were this argument persuasive, it would not provide any basis to withhold detailed information concerning non-crime victim witnesses.

At least one trial court considering this question held in an unreported decision that the case law interpreting CPLR Article 5 should apply to venue change motions under Article 10. State v. Eugene B., Index # 2012-452 (Franklin County Supreme Court, September 20, 2012 [Demarest, J.]). No New York appellate court has explicitly opined on the question. The Fourth Department, however, has on four occasions since 2009 reversed trial court decisions granting venue change motions made by the State in Article 10 cases because the State, as is true here, did not make a sufficient evidentiary showing which would warrant a venue change. See State v. Zimmer, 63 AD3d 1562 (4th Dept 2009) ("general allegations concerning the convenience of petitioner's unidentified witnesses and setting forth in a conclusory manner that respondent had the greatest ties to Broome County" lacked sufficient specificity to warrant venue change); State v. Carter, 100 AD3d 1438 (4th Dept 2012) (allegations [like those in the instant case] that certain witnesses "may" be called to testify and conclusory allegations that witnesses had ties to the county to which transfer was sought and would be inconvenienced by traveling to current county failed to set forth specific facts warranting venue change); State v. Steinmetz, 101 AD3d 1726 (4th Dept 2012); State v. Williams, 92 AD3d 1271 (4th Dept 2012) (similar).

The State makes the argument that it should not be required to demonstrate that witnesses would be willing to testify in support of its motion because "public safety is paramount" in Article 10 cases and the State can subpoena witnesses. But the Court does not see why the need to protect public safety provides a justification for the State to meet a lesser evidentiary burden in this application.

The State had a choice in filing the instant motion. This Court, almost six years ago, held that case law governing venue change motions under the CPLR governed venue change motions under Article 10. The facts underlying the instant case have developed since that time. But this Court's decision has not been overruled. To the contrary, controlling appellate authority has [*10]clearly rejected the idea that conclusory allegations like the ones made by the State here are sufficient to allow a venue change motion to be granted. The State could have chosen to comply with the requirements for venue change motions which that case law has outlined by developing non-conclusory facts which would support its position and filing the instant motion once such facts had been sufficiently developed. Instead, it chose to repeat the same legal arguments this Court rejected long ago, albeit in case with both new facts and a new legal landscape which arguably lends further support to the State's position today.

As one commentator has noted: "Countless motions to change venue pursuant to CPLR §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 CPLR §510 (3), Vincent Alexander, at 2 (2012). 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

The "condition of the respondent" clearly weighs against granting the State's motion. Granting that motion would sever the relationship he has maintained with his attorneys for over eight years. Article 10 proceedings can result in a respondent's indefinite civil confinement. They can result in a more significant deprivation of liberty than is possible in all but the most serious criminal trials. In Article 10 cases, moreover, the ultimate question is not the degree to which a respondent committed sex crimes but the mental condition of the respondent himself. Given the fact that Article 10 trials focus on what in other contexts would be the most private aspects of a respondent's mental condition, the need for a relationship of trust between a respondent and his attorneys may be even greater than at a criminal trial.

The fact that a venue change would result in the termination of the Respondent's attorney-client relationship is not only significant with respect to the application of Article 10's venue change rules. It would also implicate Mr. Y.'s right to be represented by attorneys of his choosing. Courts have inherent authority to manage trials, but in doing so should be "hesitant to interfere in an established attorney-client relationship" in order to safeguard the goal of securing effective legal representation. People v. Knowles, 88 NY2d 763, 766 (1996).

Mr. Y.'s current attorney-client relationships have not only been long standing. His current attorneys have also litigated an extraordinary scope of factual and legal issues on his behalf. His counsels have not only represented him through numerous pre-trial proceedings and a trial. They have represented him through appeals to both the Appellate Division and the Court of Appeals. They have secured a landmark legal ruling in his favor. New attorneys, no matter how effective they might be, could never hope to replicate that background.

Convenience of the Parties

The convenience of the parties consideration provided in the Article 10 venue statute obviously overlaps with the "convenience of witnesses" consideration, since a party may find it most convenient to try a case in the location where most of their witnesses are located. The State by bringing this motion obviously asserts that it would be most convenient for it to proceed in Oswego County. With respect to the convenience of the attorneys, however, it is clear that this interest weighs in favor of denying the State's motion. The State is represented by the Attorney [*11]General. While the Attorney General has offices throughout the state, the attorneys who tried the case previously were obviously based, at least during the trial, in New York City. Were venue transferred, the State's attorneys would have to be based in Oswego County. Apart from witness convenience, a venue transfer would appear to create an additional burden for the State's attorneys although the Court does not know how significant any such burden might be. As discussed supra, the transfer would certainly have a negative impact on the Respondent's representation.

Additional Venue Change Considerations

While the Article 10 venue change statute notes three factors the court may consider, those considerations are not exclusive. Rather, venue may be moved upon any basis if "good cause" is shown. The Respondent correctly notes that a change of venue would likely further delay this case and that this factor argues against changing venue. As noted supra, the Court of Appeals in its second Harkavy decision directed the parties to "conduct the required proceedings expeditiously" given the extensive delays which had occurred in the case at the time. That admonition was delivered almost seven years ago. By any measure, the fact that Mr. Y. has been confined by the State awaiting a final resolution of his case for more than 8 years is extraordinary and has resulted in a deprivation of his liberty pending a final trial for a period he has every right to demand come to an end as soon as possible. In this Court's view, with the exception of the time during which Mr. Y. was unlawfully confined prior to the enactment of Article 10, the delays which have occurred in his case have not resulted from wrongful conduct by the State, the Respondent's attorneys or the courts.^[FN8] But that does not make those delays any less egregious with respect to their impact on Mr. Y.

A venue transfer now would delay the retrial even longer, while the case was transferred and new attorneys were assigned. On the other hand, a venue transfer might facilitate efforts by the State to locate new fact witnesses and schedule their testimony. On balance, however, it seems to the Court that the delays which would accrue from a venue transfer would likely far outstrip any time savings which might arise from granting the State's motion. This factor then also argues that the State's motion should be denied.

The State also makes a number of other points in support of its motion. First, it is argued that since one possible outcome of Mr. Y.'s trial would be his placement on SIST and since he would probably not reside in Manhattan after a SIST placement, a Manhattan judge would not be the optimal person to make a SIST determination. That argument is not persuasive to the Court. First, it presumes a contingency which may never occur. There are three possible outcomes in this case. Only one — a finding that Mr. Y. suffered from a Mental Abnormality followed by a second finding that he was not a Dangerous Sex Offender Requiring Confinement — is relevant here. Assuming that outcome occurred, however, according to the State, Mr. Y. would seek to live in Franklin County. If that happened, a judge in Oswego County would face the same problem as a New York County judge: the necessity for making a SIST determination regarding residence in a county outside the court's jurisdiction. [*12]

Indeed, as this Court outlined in its original decision in K.B., Oswego County might be the least appropriate place for Mr. Y. to reside after a SIST placement. Among the many requirements a court can impose under SIST are a "prohibition of contact with identified past or potential victims". See MHL §10.11(a) (1). That requirement would argue that respondents might be better placed under supervision away from the locations where their victims might live. This might be particularly important in a small community where the likelihood that an offender might encounter a past victim was greater.

The State makes the additional practical argument that were the Respondent placed on SIST in an upstate community, a court in New York county would be hard pressed to monitor that supervision. As this Court outlined in much more detail in its original decision in K.B., however, it would make little sense for a court in Manhattan or Oswego County to continue to supervise an offender on SIST who was living and being supervised by parole officers in a different location like Franklin County. K.B., 2008 NY SlipOp at 13. While the Article 10 statute is unclear as to whether a court is entitled to transfer the supervision of a SIST respondent in such a case to the county where an offender lived, this Court believes it has that authority. The State in its motion has indicated that it agrees with that view.^[FN9]

Finally, it is argued that venue should be transferred to the place where Mr. Y.'s crimes were committed because that community has the greatest interest in adjudicating this case. There is certainly a valid argument that this and every Article 10 case should be tried in the location where a respondent's crimes were committed. But as this Court outlined supra, that issue was extensively debated and resolved by the Legislature when Article 10 was enacted. The Legislature decided against such a blanket rule. This Court would certainly agree that if it were asked to decide in the first instance as a matter of public policy whether this case should be venued in Oswego or New York County, Oswego County would be the best choice. But this Court is not free to create such a policy nor is it writing on a blank slate. It is applying a statute and ruling in a case with an eight year history.

The reasons why the evidentiary requirements applicable to venue change motions under the CPLR make good sense are apparent here. The State, the party with the burden in this motion, urges that the venue of this trial should be changed based on considerations which may never occur. It argues that witnesses it will not identify, whom it may never call and may not be available even if they are sought justify moving the trial. The expert witnesses who are the most likely to testify at the next trial, meanwhile, apparently continue to be located in New York City. On the other side, the Respondent, the party with no burden, has asserted two vital and identifiable consequences of a venue change: the severing of an 8 year attorney-client relationship and further delay imposed on a respondent who has already been confined for more than 8 years. The State certainly has valid reasons for preferring that this case be moved to Oswego County. It has not made the particularized demonstration of good cause, however, which this Court believes is required. Moreover, there are significant countervailing considerations which argue against granting the State's motion. That motion is therefore denied.

March 26, 2014_____________________________

Daniel Conviser, A.J.S.C.