Supreme Court, St. Lawrence County, May 29, 2020

Sylvia Rivera Law Project (Hannah Walker of counsel) for petitioner.

Letitia James, Attorney General (Alicia M. Lendon of counsel), for New York State.

Petitioner D.C.S. (S or petitioner) resident of the St. Lawrence Psychiatric Center (SLPC) is civilly confined to the Sex Offender Treatment Program (SOTP) as a dangerous sex offender requiring confinement pursuant to Mental Hygiene Law article 10. By notice of petition for name change dated September 27, 2019 (NY St Cts Elec Filing [NYSCEF] Doc No. 10) and petition (NYSCEF Doc No. 1), with exhibits (NYSCEF Doc Nos. 3, 4), petitioner seeks an order pursuant to Civil Rights Law article 6 changing her^[FN1] name to E.A.F. The Attorney General of the State of New York (Alicia M. Lendon, Esq., of counsel) partially opposes the relief requested in the petition. (See NYSCEF Doc No. 22, Lendon affirmation ¶ 13.) For the reasons which follow, the court denies the petition.

Petitioner was born April 25, 1991, in Cortland, New York, and resides at Bridgeview, part of SLPC, in Ogdensburg, New York in the SOTP. (Petition ¶¶ 3-4; Lendon affirmation ¶ 3; mem at 7.)^[FN2] On March 27, 2012, petitioner pleaded guilty in Cortland County to: (1) attempted assault in the second degree (Penal Law § 120.05); and (2) attempted sexual abuse in the first degree (Penal Law § 130.65). (Petition ¶ 9 [a], [b]; NYSCEF Doc No. 4, petition, exhibit B [criminal history]; see Lendon affirmation ¶ 2.) On March 29, 2012, petitioner was received into the custody of the New York Department of Corrections and Community Supervision (DOCCS). (Id.) On March 12, 2015, petitioner was released upon a civil commitment to Office of Mental Health custody, and on March 21, 2017, petitioner was returned to DOCCS custody for violation of parole. (Id.; see criminal history at 4.) Petitioner was released from DOCCS custody{**68 Misc 3d at 665} to Bridgeview on February 6, 2018. (Lendon affirmation ¶ 2.) Petitioner has a maximum postrelease date of March 9, 2025. (Id.; see mem at 8.)

Petitioner avers she was never married and has no obligation for spousal support; has no minor children or child support obligations; has never been adjudicated bankrupt; and has no outstanding judgments or liens. (Petition ¶¶ 5-8.) Petitioner's criminal history is attached to the petition. Petitioner has provided notice of the petition to: (1) the Supreme Court of Cortland County, Criminal Term; (2) the New York State Attorney General; (3) Mental Hygiene Legal Service (Nan B. Clingman, Esq., of counsel); and (4) the Cortland County District Attorney. (See NYSCEF Doc Nos. 8, 10.)

The petition avers the following ground for name change application: "Petitioner wants to legally change her name from D[ ] C[ ] S[ ] to E[ ] A[ ] F[ ] to better reflect her transgender female identity, and to accurately reflect herself with this new name." (¶ 12.) By letter dated October 24, 2019 (NYSCEF Doc No. 12), the court directed petitioner submit an additional affidavit "as to the basis for which the surname 'S[ ]' is sought to be changed to 'F[ ].' " In response, petitioner's January 22, 2020 affidavit (NYSCEF Doc No. 19) states:

"I am requesting that my surname be changed from 'S[ ]' to 'F[ ]' because my longtime partner E[ ] F[ ]'s last name is 'F[ ].' I have been with my partner since approximately April 2015, and though we cannot be married while I am confined, I would like to take my partner's last name at this time." (¶ 2.)

No affidavit from petitioner's "longtime partner" E.F. has been submitted.

The Attorney General opposes so much of the application as seeks to change petitioner's surname from S to F, but takes no position as to the request to change first and middle names. (Lendon affirmation ¶¶ 12, 13.) Pursuant to the Sex Offender Registration Act (Correction Law art 6-C) (SORA), and based on the conviction for attempted sexual abuse in the first degree of a five-year-old female victim, petitioner is listed on the Sex Offender Registry as a level three sexually violent offender. (Lendon affirmation ¶ 10.)^[FN3] As acknowledged by petitioner's counsel, petitioner "must abide" with the "stringent reporting {**68 Misc 3d at 666}requirements [of SORA] for the remainder of life as a level 3 sexual offender." (Mem at 8.) The Attorney General asserts the change of all of petitioner's names—first, middle, and last—"would have the compounding effect of causing potential confusion and misrepresentation as to Petitioner's criminal past, and specifically her sexual conviction, all in contravention of the purpose behind [SORA and] Mental Hygiene Law Article 10." (Lendon affirmation ¶ 14.)

Under New York law, a name change may be accomplished in two ways. "Under the common law a person may change his or her name at will so long as there is no fraud, misrepresentation or interference with the rights of others." (Matter of Halligan, 46 AD2d 170, 171 [4th Dept 1974].) The Civil Rights Law provides an additional method to accomplish this task "whereby a change of name is authorized by judicial proceedings allowing it to be 'speedy, definite and a matter of record.' " (Matter of Golden, 56 AD3d 1109, 1110 [3d Dept 2008] [internal quotation marks and citation omitted].) Both the common law and statutory procedures " 'exist side by side supplementing each other.' " (Id., quoting Matter of Halligan.)

It is well established that this court's authority to review a name change application is limited. (Matter of Powell, 95 AD3d 1631, 1632 [3d Dept 2012].) In this regard, Civil Rights Law § 63 provides, in pertinent part:

"If the court to which the petition is presented is satisfied thereby, or by the affidavit and [*3]certificate presented therewith, that the petition is true, and that there is no reasonable objection to the change of name proposed . . . , the court shall make an order authorizing the petitioner to assume the name proposed." (Emphases added.)

"While a court's authority to review an application for a name change is limited, the court is not a mere rubber stamp and need only grant such an application if satisfied of the truth of{**68 Misc 3d at 667} the petition." (Matter of Beals, 40 Misc 3d 61, 62 [App Term, 1st Dept 2013] [emphasis added], citing Matter of Powell.) "A court should not rubber-stamp any application for a name change as it is the court's obligation to ensure that the name change will not be a source of fraud, evasion or interference with the rights of others." (Matter of Boquin, 24 Misc 3d 473, 474 [Sup Ct, Westchester County 2009] [emphasis added].)

In the instant case, petitioner has satisfied the formal notice and other requirements of the Civil Rights Law. The issue before the court, then, is whether there is a "reasonable objection" (Matter of Powell, 95 AD3d at 1632) or "demonstrable reason" (Matter of Waters, 264 AD2d 910, 910 [3d Dept 1999]) to deny the petition. Such objections may include factors from which the court may infer "fraud, misrepresentation or interference with the rights of others." (Matter of Golden, 56 AD3d at 1111; Matter of Powell, 95 AD3d at 1632-1633 ["indication of fraud, misrepresentation or intent to interfere with others' rights" may justify denial of name change petition].) If there is such an objection, the court may deny the requested name change; if not, the name change "shall" (Civil Rights Law § 63) be authorized.

Before addressing the specific facts of petitioner's application, the court first sets forth those factors which, standing alone, are not reasonable objections. First, that petitioner is a transgendered person wishing to change from traditionally male (or female) to female (or male) names is not a reasonable objection. (Matter of Golden, 56 AD3d at 1110-1111.) Second, "petitioner's incarceration, without more, does not justify denial of the petition," at least so long as DOCCS had been notified of the proposed name change and expresses no objection. (Matter of Jackson, 144 AD3d 1539, 1540 [4th Dept 2016].) Third, the fact that a petitioner was a prison inmate (and is now civilly confined) "born [one gender] male but self-identif[ying] as [the other gender]" does not alone constitute a reasonable objection to a name change, at least when the incarcerating agency has "been put on notice of [the] application and [has] no objection to it." (Matter of Powell, 95 AD3d at 1631-1632.) Potential for confusion does not itself justify denying a petition. "[C]onfusion is a normal concomitant of any name change." (Matter of Halligan, 46 AD2d at 172 [quoted in Matter of Golden].)

Although the Third Department has made clear that the court's review of an adult name change petition is circumscribed, it has equally established that judicial review is highly{**68 Misc 3d at 668} fact-specific to each individual application. Here, petitioner: (1) was incarcerated for first-degree rape of a five-year-old child; (2) has been judicially determined to be a dangerous sex offender requiring treatment in a secure facility, and is now civilly confined pursuant to Mental Hygiene Law article 10; (3) is now designated and will remain a level three sexually violent offender under SORA; (4) seeks to change her entire name—first, middle, and surname; (5) wishes to assume customarily female (E.A.) first and middle names in place of the traditional male (D.C.) birth names; and (5) seeks to assume the surname of her romantic partner, E.F. The Attorney General has objected to the surname change. E.F. has not submitted an affidavit indicating approval of the proposed surname change, or, indeed, whether there is any awareness of petitioner's [*4]application.

The Fourth Department's decision in Matter of Glanowski (140 AD3d 1622 [4th Dept 2016]) is closely on point. In that case, petitioner was on postrelease supervision following incarceration for conviction of first-degree rape of a child, and was subject to a 16-year order of protection and sex offender registration under his current legal name. (140 AD3d at 1622.) The District Attorney who prosecuted petitioner objected to the proposed name change. In affirming Supreme Court's denial of name change, the Fourth Department in Glanowski stated as follows:

"We conclude that the name change would create record-keeping problems for law enforcement officials and would create potential danger to the victim and the general public. Under the circumstances, [Supreme Court] was properly 'satisfied . . . that there is [a] reasonable objection to the change of name' and hence a 'demonstrable reason not to' grant the petition." (Id. [citations omitted].)

Unlike petitioner S here, the petitioner in Matter of Glanowski: (1) did not seek to change his entire name; (2) had not been civilly confined as a dangerous sex offender requiring treatment; and (3) was not a transgender person seeking to assume a customarily female name.

Matter of Gutkaiss (11 Misc 3d 211 [Sup Ct, Columbia County 2005]) is also instructive. There, petitioner was incarcerated as a convicted sex offender for an act of sodomy upon his nephew, who was then less than 12 years old. If the court granted the name change, petitioner "would be forced to register as a sex {**68 Misc 3d at 669}offender using his new name." (11 Misc 3d at 212.) Petitioner sought to change his name from Timothy George Gutkaiss to Timothy George Dunagan, on the ground that Dunagan was his mother's maiden name. The Columbia County Sheriff's Department opposed the petition. (Id.) In denying the petition, the court in Matter of Gutkaiss looked to the purpose of the SORA:

"Although it is true that upon his release petitioner would be forced to register as a sex offender using his new name, it is possible that those familiar with Timothy George Gutkaiss prior to his incarceration may not be alerted to his presence unless his name remains the same. People may change their appearance; if the court allows petitioner to change his name he may, in effect, create a new identity for himself. The Sex Offender Registration Act is designed to protect unwary members of the public from convicted sex offenders. To allow sex offenders to change their names from that which they were called at the time of their crime would undermine the very purpose of the statute." (Id. at 212-213 [emphasis added and citations omitted].)

Like petitioner in Glanowski, but unlike S here, Gutkaiss: (1) did not seek to change his entire name; (2) had not been civilly confined as a dangerous sex offender requiring treatment in a secure facility; and (3) was not a transgender person seeking to assume a name customary to the gender to which he was transitioning. In denying the name change application, the Fourth Department in Matter of Glanowski expressly cited Matter of Gutkaiss.

Petitioner's reliance on the Third Department's decisions in Matter of Powell and Matter of Golden is misplaced. In Matter of Powell: (1) petitioner, a "prison inmate who was born male but self-identifies as female" (95 AD3d at 1631), did not seek to change his surname; (2) petitioner had not been convicted of a sex crime, was not subject to registration under SORA, [*5]and was not civilly confined pursuant to Mental Hygiene Law article 10; (3) the incarcerating agency had no objection to the name change; and (4) petitioner did not seek to assume a partner's, life partner's, or "longtime partner's" surname. None of those factors is true with respect to S's application here. Notably, the Third Department in Matter of Powell expressly limited its ruling to "these circumstances [which were] absent any indication of fraud, misrepresentation or intent to interfere with others' rights." (Id. at 1632-1633 [emphasis added].)

{**68 Misc 3d at 670}In Matter of Golden, petitioner, a transgender individual, sought to change first and middle names from "Earl William" to "Elisabeth Whitney," while retaining the surname "Golden." (56 AD3d at 1110.) Petitioner's spouse had submitted an affidavit in support of name change. Petitioner in Matter of Golden apparently had never been convicted of a crime or incarcerated. In approving the proposed name change, the Third Department in Matter of Golden expressly limited its ruling to "the particular circumstances herein." (Id. at 1111 [emphasis added].)

This court concludes that the particular circumstances of S's application—past incarceration for first-degree rape of a child; judicial determination as a dangerous sex offender requiring treatment in a secure facility, as a result of which she is now civilly confined pursuant to Mental Hygiene Law article 10; designation as a level three sex offender under SORA; desire to change her entire name—first, middle, and surname; application to assume customarily female first and middle names in place of petitioner's birth, customarily male names; and desire to assume the surname of her romantic partner—provide ample, "demonstrable reason[s]" (Matter of Waters at 910) from which indications of "fraud, misrepresentation or intent to interfere with others' rights" (Matter of Powell at 1633) may be inferred. This is particularly so in light of the Attorney General's well-articulated objections (see Lendon affirmation ¶¶ 3-14) to petitioner's application to change her surname. Based on these factors, and guided by the decisions in Matter of Glanowski and Matter of Gutkaiss, the court denies the petition.^[FN4]

Stating "I would like to take my partner's last name [F] at this time," petitioner in essence seeks an order allowing her to hold herself out to the public as married to her romantic partner. The court does not now address whether this justification for surname change, standing alone, provides a "reasonable objection" to her name change application. No Appellate Division or Court of Appeals decision addresses this issue. S, however, fails to provide any support for her assertion that "we {**68 Misc 3d at 671}cannot be married while I am confined" (S aff ¶ 2). On this point, the court notes: (1) Executive Order (A. Cuomo) 202.20 (9 NYCRR 8.202.20), extended to June 6, 2020, by Executive Order (A. Cuomo) 202.28 (9 NYCRR 8.202.28), authorizes, subject to certain conditions, "issuance of a marriage license application, marriage license, or witnessing or solemnizing of the marriage ceremony . . . to be performed utilizing audio-video technology" as a result of the COVID-19 pandemic; (2) petitioner points to no rule or statute barring marriage by individuals in the SOTP; and (3) the United States Supreme Court, in striking a Missouri state rule barring all inmate marriages, has held that a rule prohibiting inmate marriages must be "reasonably related to legitimate penological objectives" (Turner v Safley, 482 US 78, 99-100 [1987]).

In any event, S's request to take the surname F does not exist in a vacuum; it is simply one of many factors which the court has considered in rendering its determination. The court notes, however, the absence of an affidavit from E.F. indicating support for the proposed name change, or that (s)he^[FN5] is even aware of petitioner's judicial application to assume the surname F. (Cf. Matter of Daniels, 2 Misc 3d 413 [Civ Ct, NY County 2003].) Although common law grants an individual the right to assume any name chosen in the absence [*6]of fraud, misrepresentation or interference with the rights of others, that right does not include entitlement to a court order permitting a name change. In particular, a name change order allowing an individual to assume the name of a romantic partner may misrepresent the individuals are legally married, and thus present issues of fraud and misrepresentation (Matter of Powell; Matter of Golden). This is even more so in a state such as New York, which does not provide for common-law marriages. (See Matter of Benjamin, 34 NY2d 27 [1974].)

The court denies S's petition in its entirety.