author:
Pigott, J.
      Abdtjs-Saiaam, J.

text:
    [26 NE3d 754, 2 NYS3d 815]
    The People of the State of New York, Respondent, v Clifford Jones, Appellant.
    Argued November 17, 2014;
    decided December 16, 2014

      POINTS OF COUNSEL

      Cleary Gottlieb Steen & Hamilton LLP, New York City (Heather K. Suchorsky, Breon S. Peace, Robert W. May, Michael W. Holt, Tania G. Cohen and Yana V Grishkan of counsel), for appellant.
    I. Clifford Jones was entitled as a matter of law to a hearing to resolve disputed questions of fact essential to the determination of his CPL 440.10 motion, pursuant to CPL 440.30 (5). (People v Fields, 66 NY2d 876; Matter of New York State Assn. of Criminal Defense Lawyers v Kaye, 95 NY2d 556; People v Wesley, 83 NY2d 417; People v Crimmins, 38 NY2d 407; People v Maynard, 80 Misc 2d 279; People v Eng Hing & Lee Dock, 212 NY 373; People v Patrick, 182 NY 131; People v Welcome, 37 NY2d 811; People v Ausserau, 77 AD2d 152; People v White, 44 AD2d 749.) II. The First Department erred as a matter of law when it affirmed the summary denial of Clifford Jones’ motion without resolving complex, disputed scientific issues essential to the determination of the motion. (Frye v United States, 293 F 1013; People v Tankleff, 49 AD3d 160; People v Pitts, 4 NY3d 303; People v Crimmins, 38 NY2d 407; People v Scarola, 71 NY2d 769.) III. The trial court and the First Department erred by holding Clifford Jones to a higher standard than that required by CPL 440.10 (1) (g). (People v Crimmins, 38 NY2d 407; People v Tankleff, 49 AD3d 160; People v Russell, 99 AD3d 211; People v Dabbs, 154 Misc 2d 671.)

      Cyrus R. Vance, Jr., District Attorney, New York City (David M. Cohn and Susan Axelrod of counsel), for respondent.
    I. This Court has no power to review the discretionary denial of defendant’s motion to vacate his conviction. (People v Baxley, 84 NY2d 208; People v Friedgood, 58 NY2d 467; People v Brown, 56 NY2d 242; People v Piazza, 48 NY2d 151; People v Crimmins, 38 NY2d 407; People v Fields, 66 NY2d 876; People v Wesley, 83 NY2d 417; People v Elmer, 19 NY3d 501; People v Baumann & Sons Buses, Inc., 6 NY3d 404; People v Money, 37 NY2d 229.) II. The trial court properly denied defendant’s new evidence claim without an evidentiary hearing, and the Appellate Division’s ruling affirming that denial is unassailable. (People v Horne, 97 NY2d 404; People v Angelo, 88 NY2d 217; People v Salemi, 309 NY 208; People v Satterfield, 66 NY2d 796; People v Crimmins, 38 NY2d 407; People v Friedgood, 58 NY2d 467; People v Samandarov, 13 NY3d 433; People v Session, 34 NY2d 254; Steward v Grace, 362 F Supp 2d 608.)

      Weil, Gotshal & Manges LLP, New York City (Howard B. Comet, Melody E. Akhauan and Lisa Sokolowski of counsel), and Weil Gotshal & Manges LLP, Washington, D.C. (David B. Hird, Sunny Thompson and Courtney Enlow of counsel), for The Innocence Project, amicus curiae.
    I. The right to an evidentiary hearing is essential for motions to vacate convictions where the defendant is presenting newly discovered DNA evidence. (People v Pitts, 4 NY3d 303; People v Santiago, 17 NY3d 661; People v LeGrand, 8 NY3d 449; District Attorney’s Office for Third Judicial Dist. v Osborne, 557 US 52; People v Liggins, 181 AD2d 916; People v Baxley, 84 NY2d 208; People v Picciotti, 4 NY2d 340; People v Martinez, 22 Misc 3d 1109[A], 2009 NY Slip Op 50073 [U]; People v Session, 34 NY2d 254; People v Ausserau, 77 AD2d 152.) II. An evidentiary hearing is necessary in this case to resolve factual disputes over the reliability and significance of the DNA evidence presented by Clifford Jones. (People v Angelo, 88 NY2d 217; Lugo v New York City Health & Hosps. Corp., 89 AD3d 42; People v Tankleff, 49 AD3d 160; People v Sterling, 6 Misc 3d 712; People v Wesley, 83 NY2d 417; People v Klinger, 185 Misc 2d 574; Matter of Kenneth V., 7 Misc 3d 250; United States v Beverly, 369 F3d 516; Gregory v City of Louisville, 444 F3d 725; Peterson v Bernardi, 719 F Supp 2d 419.) III. A hearing is necessary to determine whether the new DNA evidence would have created the probability of a verdict more favorable to Clifford Jones. (People v Pitts, 4 NY3d 303; Warney v City of Rochester, 536 F Supp 2d 285; House v Bell, 547 US 518; Young v Conway, 698 F3d 69; People v LeGrand, 8 NY3d 449; People v Santiago, 17 NY3d 661; People v Abney, 13 NY3d 251.)
   OPINION OF THE COURT

Pigott, J.

Defendant sought an evidentiary hearing as part of his postjudgment motion to vacate his conviction on the ground that newly discovered evidence in the form of mitochondrial DÑA (mtDNA) testing excluded him as the perpetrator of crimes of which he was convicted in 1981 (see CPL 440.10 [1] [g]). Supreme Court and the Appellate Division, in the exercise of their discretion, summarily denied defendant’s motion. The jurisprudence of this Court, for nearly 40 years, has been that “[t]he power to review a discretionary order denying a motion to vacate judgment upon the ground of newly discovered evidence [brought pursuant to CPL 440.10 (1) (g)] ceases at the Appellate Division” (People v Crimmins, 38 NY2d 407, 409 [1975]), leaving this Court without the power to consider whether such summary denials constituted an abuse of discretion. Because the rule enunciated in Crimmins has needlessly restricted this Court’s power of review concerning CPL 440.10 (1) (g) motions, we now overrule that part of the Crimmins decision, hold that the Appellate Division abused its discretion in summarily denying defendant’s motion for an evidentiary hearing in this case, and remand it to Supreme Court for further proceedings consistent with this opinion.

I

Newly discovered evidence is one of the bases under CPL 440.10 (1) that defendants may allege when seeking postjudgment relief (see CPL 440.10 [1] [a]-[i]). When it became law in 1971, CPL 440.10 was designed to replace the common-law contentions previously raised through a motion for a writ of error coram nobis and post-conviction applications for a new trial based on newly discovered evidence (see Richard G. Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 440.10 at 183 [1971 ed]; see also Peter Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 440.10 at 248 [stating that “resort to coram nobis is unavailable in situations covered by the statute”]). Prior to the statute’s enactment, however, this Court declined to review postjudgment arguments that the Appellate Division abused its discretion in denying a defendant’s motion for a new trial based on newly discovered evidence, holding that “[t]he right to a review of such an order [in a noncapital case] ceases at the Appellate Division” (People v Fein, 18 NY2d 162, 169 [1966], cert denied 385 US 649 [1967], reh denied 386 US 978 [1967] [citations omitted]; see People v Mistretta, 7 NY2d 843, 844 [1959]; People v Girardi, 303 NY 887 [1952]; People v Luciano, 275 NY 547, 548 [1937], cert denied 305 US 620 [1938] [striking from the record all proceedings upon the motion for a new trial based on newly discovered evidence on the ground that this Court lacked the power to review the discretionary order in noncapital cases]; People v Bonifacio, 190 NY 150, 151-152 [1907]). Indeed, before the enactment of CPL article 440, no statute provided for an appeal to this Court in postjudgment proceedings.

In Crimmins, we relied on those pre-1971 cases as the foundation for our “hands-off” approach with respect to newly discovered evidence claims, and imposed a limitation on our power of review, holding that we could not review the lower courts’ summary denial of a defendant’s motion to vacate based on newly discovered evidence (Crimmins, 38 NY2d at 415-416). However, CPL 440.10 was not a piecemeal amendment to the Criminal Procedure Law but, rather, was part of the newly-adopted Criminal Procedure Law (L 1970, ch 996), which “overhauled and reformulated” the “whole area of appeals” (Mem in Support and Explanation of Proposed Crim Pro Law, L 1970, ch 996 at 12). At the time this Court decided Crimmins, the new Criminal Procedure Law provided defendants not only a mechanism for appealing a denial of a CPL 440.10 motion to the Appellate Division (see CPL 450.15 [1]), but also an opportunity to seek leave to appeal to this Court “from any adverse or partially adverse order of an intermediate appellate court entered upon an appeal taken to such intermediate appellate court pursuant to section . . . 450.15” (CPL 450.90 [1]).

The Crimmins majority acknowledged that CPL 450.15 (1) and CPL 450.90 (1) made the denial of a CPL 440.10 (1) (g) motion appealable, but submitted that merely because the denial of a motion was appealable it did not follow that it was also reviewable, explaining that this Court’s review power could not be expanded by statute alone and that CPL 450.90 (1) “must be read in context of constitutional limitations,” i.e., NY Constitution, article VI, § 3 (a) (Crimmins, 38 NY2d at 414-415). That constitutional provision limits this Court’s jurisdiction, as relevant here, to “the review of questions of law except where the judgment is of death.” (NY Const, art VI, § 3 [a].) As far as jurisdictional rules go, the Crimmins majority was correct: although an order may be appealable to this Court, it may nonetheless not present a reviewable question of law (see William C. Donnino, New York Court of Appeals on Criminal Law § 3.1 at 41 [3d ed 2011]).

We part company with the Crimmins majority not with regard to its general analysis of this Court’s jurisdiction, but with respect to its postulation that because lower courts have “unlimited” discretion in deciding whether a defendant is entitled to vacatur of judgment and a new trial based on newly discovered evidence, their determination is somehow beyond reproach (Crimmins, 38 NY2d at 415). In reaching that conclusion, the Crimmins majority relied on pre-CPL 440.10 cases such as Fein, Mistretta, Girardi, Luciano and Bonifacio, decided at a time when defendants had no statutory mechanism by which to appeal to this Court from a denial of an application for a new trial based on newly discovered evidence (see e.g. People v Baxter, 40 AD2d 551, 551 [2d Dept 1972] [dismissing the defendant’s appeal challenging Supreme Court’s denial of his motion for a new trial based on newly discovered evidence brought pursuant to section 465 (7) of the Code of Criminal Procedure]).

Now that such mechanisms are in place, defendants whose newly discovered evidence motions are summarily denied by the lower courts should have the opportunity, within the strictures of CPL 450.90 (1), to have those determinations reviewed under our abuse of discretion standard, which involves a legal, rather than factual, review. As the Crimmins dissent acknowledged,

“whether there has been an abuse of discretion is a question of law, not of fact. It matters not that the discretion which we review necessarily was exercised in a factual setting. And that is so even though we must look at the facts in order to determine whether the discretion was indeed abused” (Crimmins, 38 NY2d at 428 [Fuchsberg, J., dissenting]; see also e.g. Barasch v Micucci, 49 NY2d 594, 598 [1980] [“the possibility that the lower court’s discretion was abused does give rise to a question of law that is cognizable in this court”]).

Significant to our analysis is the structure of CPL 440.10 (1) itself and the standard of review we have employed under distinct provisions of that subdivision. We have exercised our power of review in the following instances: where the defendant challenges the lower courts’ denial of his CPL 440.10 motion seeking a hearing on his claim that the judgment was procured by fraud, duress or misrepresentation (see CPL 440.10 [1] [b]; People v Friedgood, 58 NY2d 467, 470 [1983]); where the defendant seeks a hearing claiming that material evidence adduced at trial resulting in the judgment was false (see CPL 440.10 [1] [c]; People v Brown, 56 NY2d 242, 246 [1982], rearg denied 57 NY2d 673 [1982]); where the defendant claims that improper and prejudicial conduct occurred off the record during the trial (see CPL 440.10 [1] [f]; Crimmins, 38 NY2d at 418); and where the defendant challenges a judgment on the ground that it was obtained in violation of defendant’s state or federal constitutional rights (see CPL 440.10 [1] [h]; People v Baxley, 84 NY2d 208, 212-213 [1994], rearg dismissed 86 NY2d 886 [1995]).

In each of those cases, this Court held that it could review the lower courts’ summary denial of a defendant’s motion pursuant to CPL 440.10 (1) (b), (c), (f) or (h) by applying the abuse of discretion standard, presumably because such motions were subject to postjudgment judicial review by way of a writ of error coram nobis before CPL 440.10’s enactment (see e.g. Baxley, 84 NY2d 212-213; Crimmins, 38 NY2d at 418-419). Section 440.10 (1), however, contains no directive that motions brought under paragraphs (a) through (i) should be subjected to a different standard of review depending on whether the claim was one traditionally brought through a coram nobis motion or one based on newly discovered evidence. That the legislature saw fit to place a CPL 440.10 (1) (g) motion in the same category as the other motions that, historically, were brought by coram nobis, clearly demonstrates that the same standard of review should be applied to CPL 440.10 motions brought on the ground of newly discovered evidence (see Crimmins, 38 NY2d at 429 [Fuchsberg, J., dissenting] [noting that section 440.10 “makes no distinction between posttrial, postjudgment motions, irrespective of whether they are based on newly discovered evidence or not,” and observing that the statute did not make any “special distinction for cases that, before 1971, fell within the traditional scope of the common-law writ of coram nobis” such that there was no reason to “carve out an exception for motions on the basis of newly discovered evidence”]).

We therefore make clear that this Court is empowered to conduct a review of the lower courts’ summary denial of a defendant’s CPL 440.10 (1) (g) motion, and to determine whether that denial constituted an abuse of discretion as a matter of law without running afoul of the jurisdictional limitations set forth in NY Constitution, article VI, § 3 (a). Although we are prohibited from weighing facts and evidence in noncapital cases, we are not precluded from exercising our “power to determine whether in a particular judgmental and factual setting there has been an abuse of discretion as a matter of law” because, in so doing, we are not “passing on facts as such, but rather considering them to the extent that they are a foundation for the application of law” (Crimmins, 38 NY2d at 425 [Fuchsberg, J., dissenting]). That is, in fact, what our abuse of discretion analysis entails, and we now address the underlying procedural posture of defendant’s appeal.

II

In 1981, a jury convicted defendant of rape in the first degree (Penal Law § 130.35 [1]), murder in the second degree (Penal Law § 125.25 [3]) and attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [3]), arising from incidents that occurred in an apartment building on June 2, 1980. Defendant had pursued a mistaken identity defense.

At trial, the only witness who was able to identify defendant as the perpetrator of the crimes was the rape victim, a woman who testified that she and the perpetrator, who had just met, entered an apartment building seeking a place in which to engage in sexual activity. When the woman had second thoughts and began walking away, the perpetrator put a knife to her throat and raped her. She followed the perpetrator down the stairs and observed him, with knife in hand, tussling with another man he encountered on the stairway. The perpetrator stabbed the man, searched his pockets and left the building. When the police arrived on the scene, the woman described the perpetrator as wearing a black hat with netting, and having a chipped tooth and a gap between his teeth. Officers recovered the blood-covered hat — identified at trial as a blue baseball cap by one of the officers. Four months later, the woman, an admitted heroin user with a $50 a day habit, went to the police station and picked defendant out of a lineup. She testified at trial that she had taken heroin on the morning of the lineup.

Defendant was thereafter arrested and, after trial, found guilty of the offenses set forth above. He was sentenced to an indeterminate term of 18 years to life on the murder count, and concurrent indeterminate terms of 3 to 9 years and IV2 to 4/2 years on the rape and attempted robbery counts, respectively. The Appellate Division affirmed (91 AD2d 874 [1st Dept 1982]), and a Judge of this Court denied defendant leave to appeal (58 NY2d 1119 [1983]). Defendant served his sentence and is currently on parole.

Ill

In October 2008, defendant moved pursuant to CPL 440.30 (1-a) seeking an order for DNA testing of any physical evidence that had been secured in connection with his 1981 trial, including, among other things, the rape kit and baseball cap (and hairs recovered from the cap). The People located 18 hairs from the cap, but the remainder of the vouchered evidence — the cap itself, the rape kit, the knife and the rape victim’s clothes — had been destroyed. The hair samples were sent to the New York City Police Department for microscopic analysis, but a criminalist who examined them concluded that they were not suitable for microscopic comparison or nuclear DNA testing, and suggested that mtDNA testing might yield better results. The People and the defense agreed to send the hair samples to Mitotyping Technologies, LLC, a laboratory specializing in mtDNA analysis, at defendant’s expense.

The mtDNA profiles on 3 of the 18 hair samples were compared to the profile of defendant to determine if he could be excluded as a contributor to those hair samples. According to Mitotyping, that testing resulted in a “consensus profile” that was “very different” from defendant’s and excluded him as the contributor of those hairs. Mitotyping reported that “additional testing could further develop the full profile from additional hairs should an alternative donor/suspect be identified.”

With the Mitotyping results in hand, defendant moved to vacate his conviction and for a new trial pursuant to CPL 440.10 (1) (g) on the ground that the mtDNA results constituted newly discovered evidence, or, in the alternative, for an evidentiary hearing pursuant to CPL 440.30 (5). As part of the motion, defendant submitted the trial transcript and an affidavit from Mitotyping’s president and laboratory director, Terry Melton, Ph.D., who averred that Mitotyping conducted the testing under her supervision and prepared a report based on those findings, which was attached to the affidavit along with her curriculum vitae.

The People responded with an attorney’s affirmation and asked that the court summarily deny defendant’s motion without a hearing. Although the People challenged Mitotyping’s methodology based on opinions of a doctor from the Office of the Chief Medical Examiner and the Director of the Office of Forensic Science for the New Jersey State Police, those opinions were summarized in hearsay fashion in the body of the People’s affirmation and were thus not in admissible form. The People conceded that the mtDNA testing constituted newly discovered evidence, but argued that the results did not require a hearing.

Shortly after defendant filed his CPL 440.10 motion, the Office of the Chief Medical Examiner conducted an analysis of seven fingernail scrapings that had been recovered from the murder victim. DNA had been found on five of the seven scrapings. Only one of the scrapings proved capable of DNA analysis, and that scraping excluded defendant as a contributor.

Supreme Court considered the mtDNA testing of the hairs and the DNA testing of the fingernail scrapings but summarily denied defendant’s motion on the papers, stating that the absence of defendant’s DNA relative to the few samples that were tested did not exclude defendant as the perpetrator. The court also relied, in part, on the hearsay allegations of the experts that were contained in the People’s attorney’s affirmation. A Justice of the Appellate Division granted defendant permission to appeal pursuant to CPL 460.15.

The Appellate Division affirmed in a 3-2 decision (109 AD3d 402 [1st Dept 2013]). The majority held that “even if the reliability of the evidence is assumed, defendant still did not establish a legal basis for ordering a new trial” and, therefore, “the factual disputes in this case were not material, and defendant was not prejudiced by the absence of a hearing” (id. at 403). Indeed, the test results, even if presumed accurate, established, at most, that 3 out of the 18 hairs recovered from the hat came from someone other than defendant and, in light of the strength of the eyewitness testimony at trial — the rape victim interacted with the perpetrator for at least 15 minutes — there was no indication that the hair evidence, if introduced at trial, would have resulted in a verdict more favorable to defendant (id. at 404-405). Thus, according to the majority, Supreme Court did not abuse its discretion in summarily denying defendant’s motion.

The dissenters argued that

“defendant met his initial burden by offering sworn evidence of mtDNA analysis showing that the hairs from the perpetrator’s hat were not his. The rebuttal offered by the People, in the form of an attorney’s affirmation containing hearsay statements questioning the reliability of the mtDNA test results, is insufficient to discredit defendant’s evidence” (id. at 409).

In the dissent’s view, the People’s assertions that the laboratory procedures were flawed, and the results inconclusive, constituted factual issues that should not have been determined on the papers (id.). A Justice of the Appellate Division granted defendant leave to appeal to this Court pursuant to CPL 460.20.

IV

A defendant may make a postjudgment application to vacate his judgment of conviction on the ground that

“[n]ew evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10 [1] [g]).

Once the parties have filed papers and all documentary evidence or information has been submitted, the court is obligated to consider the submitted material “for the purpose of ascertaining whether the motion is determinable without a hearing to resolve questions of fact” (CPL 440.30 [1] [a]). Upon consideration of the merits of the motion, the motion court “may deny it without conducting a hearing if: (a) [t]he moving papers do not allege any ground constituting legal basis for the motion” (CPL 440.30 [4] [a]). Undoubtedly, then, whether a defendant is entitled to a hearing on a CPL 440.10 motion is a discretionary determination, but, as we now hold today, it is nonetheless one that is subject to our review for an abuse of discretion.

Applying the standard that we now adopt in our departure from Crimmins, we conclude that the Appellate Division abused its discretion when it affirmed Supreme Court’s summary denial of defendant’s CPL 440.10 (1) (g) motion.

The People do not dispute that the mtDNA testing of the hairs and the DNA testing of the fingernail scrapings constitute newly discovered evidence, nor do they argue that defendant failed to exercise “due diligence” in bringing the motion. Rather, they claim that defendant failed to meet his burden of establishing that the new evidence was “of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to [him]” (CPL 440.10 [1] [g]).

The Appellate Division concluded that even if the reliability of defendant’s evidence was assumed, defendant failed to establish a legal basis for a new trial (CPL 440.30 [4] [a]), the factual issues were not material, and that the absence of a hearing did not prejudice defendant (109 AD3d at 403). We disagree.

The only person who testified at trial as to the identity of defendant as the perpetrator was suffering from a heroin addiction and had taken heroin the morning of the lineup and was still an addict at the time of the trial. She nonetheless testified that she interacted with the perpetrator for at least 15 minutes before he attacked her, so any physical evidence, particularly DNA evidence, would have been particularly useful to defendant at the time of trial in order to counter her identification testimony.

We have acknowledged that “forensic DNA testing has become an accurate and reliable means of analyzing physical evidence collected at crime scenes and has played an increasingly important role in conclusively connecting individuals to crimes and exonerating prisoners who were wrongfully convicted” (People v Pitts, 4 NY3d 303, 309-310 [2005]). Unlike many newly discovered evidence motions, which, for example, involve affidavits submitted by recanting witnesses (see e.g. People v Avery, 80 AD3d 982, 985-986 [3d Dept 2011], lv denied 17 NY3d 791 [2011]) or witnesses who have come forward after the guilty verdict (see e.g. Crimmins, 38 NY2d at 409), or evidence that another person confessed to the crime (see e.g. People v Feliciano, 240 AD2d 256 [1st Dept 1997]), section 440.10 (1) (g) motions involving DNA testing, analysis and results may not be easily disposed of on the papers, particularly where, as here, the defendant has submitted evidence in admissible form that goes to a central issue in the case, and the People submit only hearsay statements in opposition.

In support of his motion, defendant proffered evidence establishing that 3 of the 18 hairs tested excluded him as a contributor, and that one of the fingernail scrapings containing DNA of someone other than the murder victim excluded him as well. The People responded with a bare attorney’s affirmation containing hearsay opinions questioning Mitotyping’s methods and attacking the results. They also challenged Dr. Melton’s report without proffering an affidavit from an expert of their own to rebut that submission.

On this record, there is a dispute between defendant and the People concerning the reliability of the mtDNA testing, what the results of such testing actually mean and the weight to be given those results in light of the eyewitness identification. As such, defendant should have been afforded a hearing so he could have at the very least an opportunity of “proving by a preponderance of the evidence every fact essential to support [his] motion” (CPL 440.30 [6]), including his assertion that had such DNA evidence been presented at trial, he would have received a more favorable verdict. We reach this conclusion not by weighing the facts or the inferences drawn therefrom, but by examining the parties’ submissions and concluding that the People failed to counter defendant’s prima facie showing that he was entitled to a hearing. Not every CPL 440.10 motion brought by a defendant will warrant a hearing, nor will every summary denial of such a motion constitute an abuse of discretion, but where, as here, there is significant DNA evidence favorable to the defendant and the People proffer no admissible evidence in opposition to that evidence, defendant is, at the very least, entitled to a hearing on his motion.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

Abdtjs-Saiaam, J.

(concurring). I agree with the majority that the courts below erred as a matter of law in summarily denying defendant’s CPL 440.10 (1) (g) motion. I write separately because I believe that on this record, the motion court had no discretion to deny the motion without a hearing, but instead was required to conduct a hearing pursuant to CPL 440.30 (5). Thus, I would not apply an abuse of discretion analysis in this case because a hearing was required under the statute.

In deciding whether to hold a hearing on a CPL 440.10 motion, a court must look to CPL 440.30 for guidance. That statute instructs on the precise circumstances when the court must “summarily deny” a motion (CPL 440.30 [2]); must grant the motion without conducting a hearing (CPL 440.30 [3]); may deny the motion without conducting a hearing (CPL 440.30 [4]); and must conduct a hearing (CPL 440.30 [5]). CPL 440.30 (5) unequivocally provides that “[i]f the court does not determine the motion pursuant to subdivisions two, three or four, it must conduct a hearing and make findings of fact essential to the determination thereof.”

CPL 440.30 (4) gives the court discretion to deny the motion without a hearing in only four enumerated circumstances. The only such circumstance claimed to be applicable here is that the facts alleged do not constitute a legal basis for the motion (see CPL 440.30 [4] [a]). Thus, if defendant’s allegations supplied a legal basis for the motion, he was entitled to a hearing as a matter of law (see CPL 440.30 [5]; People v Baxley, 84 NY2d 208, 214 [1994]). Contrary to the People’s argument, it is clear that defendant’s motion did allege a ground constituting a legal basis for the motion. He alleged that newly discovered DNA evidence, if established, could entitle him to the relief sought. Specifically, he submitted proof of DNA evidence that would have excluded him as a contributor to some DNA recovered at the crime scene and may have caused a jury to doubt the eyewitness identification that led to his conviction (see People v Ferreras, 70 NY2d 630, 631 [1987] [court erred in denying a motion without a hearing where facts “if established could entitle defendant to the relief sought”]).

CPL 440.30 (4) (a) does not require a movant to establish that he or she would ultimately prevail on the merits of the motion in order to be entitled to a hearing (see People v Hughes, 181 AD2d 912, 913 [2d Dept 1992] [“That the defendant’s chances of ultimate success in meeting his burden of proof with respect to the issues raised in his motion (see, CPL 440.30 [6]) may be slight, or even remote, does not, by itself, furnish a basis to deny the motion without a hearing”]). Rather, the appropriate threshold question for the court is whether the movant alleged any ground constituting a legal basis for the motion. CPL 440.30 (5) clearly contemplates that defendants who make the required prima facie showing have the right to present that evidence at an evidentiary hearing. As was correctly noted by the Appellate Division dissent, ££[i]f the defendant produces post-conviction evidence favorable to him or her, CPL 440.30 (5) requires the court to ‘conduct a hearing and make findings of fact essential to the determination [of the motion]’ ” (109 AD3d at 408-409).

In sum, because defendant’s motion alleged that he had favorable evidence that could entitle him to the relief sought, and the motion had none of the deficiencies set forth in CPL 440.30 (4) (a), (b), (c) or (d), the court did not have discretion to decide the motion without conducting a hearing, and such hearing was required pursuant to CPL 440.30 (5).

Chief Judge Lippman and Judges Read, Smith and Rivera concur; Judge Abdus-Salaam concurs in a separate concurring opinion.

Order reversed and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein.

      . The Criminal Procedure Law as originally adopted permitted defendants to appeal the denial of their CPL 440.10 motions to the Appellate Division as of right (L 1970, ch 996), but prior to the statute’s effective date of September 1, 1971, the legislature amended the Criminal Procedure Law so that a defendant could only appeal denial of his postjudgment motion to the Appellate Division by first obtaining permission (L 1971, ch 671, § 1; see Mem of St Executive Dept, L 1971, ch 671, 1971 McKinney’s Session Laws of NY at 2463-2464).

      . This type of testing involves the isolation of the DNA contained in the mitochondria of cells, thereby allowing for the sequencing of the DNA bases to be determined. It is commonly performed on samples that are unsuitable for restriction fragment length polymorphism and polymerase chain reaction testing of nuclear DNA, namely, dried bones, teeth, hair shafts and any other sample that contains “very little or highly degraded nuclear DNA” (U.S. Department of Justice, Report from National Commission on the Future of DNA Evidence, Post-Conviction DNA Testing: Recommendations for Handling Requests at 26-28 [Sept. 1999]).

      . Defendant also moved for vacatur of his conviction and dismissal of the underlying indictment. The only issue presented on this appeal, however, is whether defendant is entitled to an evidentiary hearing on his newly discovered evidence claim.

      . The majority acknowledged that the People’s expert analysis- — -presented in the People’s affirmation and not by way of expert affidavit — could not provide a basis for denial of the motion as those opinions were not in admissible form (109 AD3d at 404 n 3).


source: Caselaw Access Project

author: Smith, J. Pigott, J.

license: Public Domain

text:
    [26 NE3d 764, 2 NYS3d 825]
    The People of the State of New York, Respondent, v Raul Johnson, Appellant.
    Argued November 17, 2014;
    decided December 17, 2014

      POINTS OF COUNSEL

      Ellen O’Hara Woods, Blauvelt, and James D. Licata, Public Defender, New City (Lois Cappelletti of counsel), for appellant.
    I. Raul Johnson’s right to counsel indelibly attached at the proffer meeting which was directly related to the attempted murder that was the subject of the interrogation. (People v Davis, 75 NY2d 517; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325; People v Grice, 100 NY2d 318; People v West, 81 NY2d 370; People v Skinner, 52 NY2d 24; People v Marrero, 51 NY2d 56; People v Callicutt, 85 AD3d 1326; People v Lopez, 16 NY3d 375; People v Crimmins, 36 NY2d 230.) II. Raul Johnson’s minor misrepresentations at the proffer session did not constitute a material breach voiding the agreement. (United States v Pelletier, 898 F2d 297; People v Schaefer, 136 AD2d 661; United States v Aleman, 286 F3d 86; United States v Rexach, 896 F2d 710; People v Crimmins, 36 NY2d 230.) III. The trial court abused its discretion by not precluding Raul Johnson’s statement or sanctioning the prosecution or reopening the suppression hearing because of the People’s untimely turning over of pretrial Rosario material. (People v Rosario, 9 NY2d 286; People v Thompson, 71 NY2d 918; People v Williams, 50 AD3d 1177; People v Joseph, 86 NY2d 565; People v Anderson, 222 AD2d 442.)

      Thomas P Zugibe, District Attorney, New City (Itamar J. Yeger of counsel), for respondent.
    I. The hearing court properly rejected defendant’s “related matters doctrine” claim regarding his attorney’s representation in an unrelated case and therefore properly admitted his confessions. In any event, defendant’s allegedly unlawful initial oral confession is attenuated from his detailed written confession, and any testimony related to the oral confession was harmless. (People v Montes, 173 Misc 2d 886; People v Scott, 86 NY2d 864; People v Harris, 20 NY3d 912; People v Ramirez, 89 NY2d 444; People v Sohn, 148 AD2d 553; People v Woods, 141 AD2d 588; People v Chavis, 147 AD2d 582; People v Love, 57 NY2d 998; People v Prochilo, 41 NY2d 759; People v Jakins, 277 AD2d 328.) II. Defendant’s claims at his proffer session and initially at his confidential informant meeting that another man stabbed the victim, a claim defendant admitted was a lie when he spontaneously confessed to the stabbing, alone or coupled with his other prevarications, easily constitute a material breach of the proffer agreement. The agreement, by its terms, applied only to the proffer session and not to the confidential informant meeting. (United States v Gregory, 245 F3d 160; United States v Gomez, 210 F Supp 2d 465; People v Stokes, 165 Misc 2d 934; People v Delayo, 52 AD3d 1114; United States v Lopez, 219 F3d 343; United States v Gerant, 775 F Supp 182; United States v Seeright, 978 F2d 842; United States v Pollack, 91 F3d 331; United States v Castelbuono, 643 F Supp 965; United States v Hyles, 521 F3d 946.) III. Defendant’s suppression hearing Rosario claim as to certain notes from detective Romano is unpreserved. Further, the material was not Ro

      sario for the Huntley/Dunaway hearing. In any event, the hearing court properly exercised its discretion when it declined to sanction the People. Finally, any error was completely harmless. (People v Rosario, 9 NY2d 286; People v Graves, 85 NY2d 1024; People v Rogelio, 79 NY2d 843; People v Taylor, 36 AD3d 562; People v Cosmo, 205 NY 91; Virgo v Bonavilla, 49 NY2d 982; People v Rivera, 78 NY2d 901; People v Jackson, 78 NY2d 900; People v Brummel, 136 AD2d 322; People v Contreras, 12 NY3d 268.)
   OPINION OF THE COURT

Smith, J.

Here, as in People v McLean (24 NY3d 125 [2014]), we consider a case in which a defendant, charged with one crime, sought to obtain leniency by providing information about a second, unrelated crime. Here, as in McLean, defendant was ultimately charged with committing the second crime, and the People offered in evidence statements defendant made to the police when the lawyer who represented him in the first case was not present.

In McLean, the first case was over when defendant was questioned, and the lawyer who had handled that case told the police that the representation had ended. We held there that the defendant’s right to counsel was not violated. Here, the first case, and the lawyer’s representation of defendant in it, were continuing when defendant was questioned about the second case. We hold that under these circumstances, there was a violation of defendant’s right to counsel.

I

Defendant was arrested for burglary. He told one of the arresting officers that he had information about an earlier crime, a stabbing in a supermarket parking lot. This led to a meeting on October 12, 2007 attended by defendant; by John Schwarz, the lawyer representing defendant in the burglary case; and by police officers and an assistant district attorney. The meeting began with the signing of a so-called “queen-for-a-day” agreement, in which defendant agreed that he would “fully and truthfully respond to any and all questions” the police put to him, and the People agreed that any statement responsive to any such question “will not be used as direct evidence in any prosecution brought” against defendant, except one for perjury or contempt. The agreement said that it would be “null and void” if defendant violated any of its terms.

During the October 12 meeting, defendant told the police and the Assistant District Attorney that a friend of his, Sunny Bajwa, had admitted to defendant that he stabbed a man at the supermarket. Defendant said that the stabbing happened while he was in jail, but the police checked the dates and found that defendant had been released 10 days before the stabbing. After extensive questioning, the police were skeptical of some aspects of defendant’s story, but nevertheless concluded that he would be a useful cooperating witness. They asked him if he would be “wired up” to talk to Bajwa, and defendant agreed.

In January of 2008, defendant was released from jail with the People’s consent. On April 19, 2008, defendant, with no lawyer present, met with two police officers and made the statements that are in issue here.

Schwarz, defendant’s lawyer, acknowledged that he knew before the April 19 meeting that the police would be in touch with his client. Schwarz testified that it was his understanding that defendant “would present himself and be wired up.” He added that he did not believe that defendant “was going to be interrogated by any law enforcement personnel.” The police testified that they viewed the meeting as a session to plan for the recorded conversation between defendant and Bajwa.

At the meeting the officers and defendant talked at length about the supermarket stabbing, and defendant’s version of events changed several times. He began by saying that he was not present at the stabbing, but was told about it. Then he said that he witnessed it from across the street. When an officer said that it did not seem possible to see from across the street what defendant claimed to have seen, defendant admitted that he was on the same side of the street as the supermarket.

Defendant continued with a long narrative about what he claimed to have seen, interrupted by occasional questions from the police. As he told his story, defendant, according to the police testimony, began to seem “more uncomfortable,” and said that “at no time was he closer than twenty feet” to the incident. As his apparent discomfort increased further, an officer asked him what was bothering him, to which his answer was: “I’m afraid I’m not going to go home today.” The officers reassured him that he would, and defendant then admitted that, during the encounter, he had punched the victim. Asked if he stabbed him, defendant said no, but after going on with his description he changed his story once more, saying that he stabbed the victim in the chest with a knife.

At this point, the police officers interrupted the conversation to consult their supervisor. When they returned to the interview room, they read defendant his Miranda rights. Defendant agreed to continue talking to them and did so. Eventually, his latest version of the stabbing was reduced to a typed statement, which he signed. There is no evidence that any effort was made, at any time on April 19, to contact defendant’s lawyer.

Defendant was allowed to go home on April 19, but he was later arrested and charged with attempted murder and assault. Supreme Court denied his motion to suppress his April 19 statements (24 Misc 3d 1235[A], 2009 NY Slip Op 51757[U] [2009]), and defendant was convicted of both crimes. The Appellate Division affirmed, concluding that the police officers “were not barred from questioning the defendant about the stabbing despite the fact that he was represented by counsel on a pending burglary charge, as the two charges were unrelated” (People v Johnson, 100 AD3d 777, 778 [2d Dept 2012]). A Judge of this Court granted leave to appeal (21 NY3d 1005 [2013]), and we now reverse, suppress defendant’s statements, and order a new trial.

II

Defendant argues that the People’s use of the statements he made on April 19 violated both the agreement that he signed on October 12 and his right to counsel under New York law. The October 12 agreement does not help him. It says on its face that it “shall be null and void” if defendant violates any of its terms — and he obviously violated the requirement that he respond “truthfully” to all police questions. We agree with defendant, however, that the April 19 police questioning was inconsistent with his right to counsel.

Defendant relies on the rule, long established in New York, that “[o]nce an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant’s right to counsel” (People v Arthur, 22 NY2d 325, 329 [1968]). The People respond that this rule does not apply here because the “proceeding” in which the police questioned defendant on April 19 — their investigation of the supermarket stabbing — was one that no attorney had entered. Schwarz, in the People’s view, represented defendant only in the burglary case, about which he was not questioned.

We do not find this a viable distinction. The stabbing investigation cannot be neatly separated from Schwarz’s representation of defendant in the burglary case. Defendant had pinned his hopes for a favorable result in the burglary case on his cooperation with the police investigation of the stabbing. Under these circumstances, Schwarz’s duty to his client required him to concern himself with both cases.

Schwarz was not, of course, retained to defend the stabbing case: before the April 19 meeting, defendant had not been charged with the stabbing, and no such charge seemed likely. But Schwarz’s obligation in defending the burglary case included an obligation to be alert to, and to avert if he could, the possibility that defendant’s cooperation would hurt rather than help him. No responsible lawyer in Schwarz’s situation would concern himself with the burglary case alone, indifferent to the disaster that might strike defendant if he incriminated himself in the stabbing.

We therefore conclude that defendant’s right to counsel encompassed his conversations with police about the stabbing, as long as those conversations were part of an effort to obtain leniency in the burglary case in which Schwarz represented him. Thus, unless the right to counsel was waived, the police should not have questioned defendant about the stabbing in his lawyer’s absence. This conclusion does not conflict with our holding in McLean, where the police interviewed the defendant after the first case was over, and where the lawyer who represented the defendant in the first case assured the police that that representation was at an end (see McLean, 24 NY3d at 128).

Ill

The People argue, in the alternative, that defendant validly waived his right to be represented by counsel at the April 19 meeting. Unquestionably, where a defendant in one case seeks to obtain leniency by cooperating with the police in another, a limited waiver of the right to counsel to permit that cooperation would be normal and appropriate. In this case, however, there simply was no such waiver. And if there had been, the waiver could hardly have encompassed that part of the police interrogation that took place after the police knew that defendant himself was likely to be prosecuted for the stabbing.

While it is true that Schwarz knew that defendant would meet with the police on April 19, he denied knowing that defendant would be “interrogated.” Perhaps, knowing that defendant was to be “wired up” to talk to Bajwa, Schwarz should have assumed that there would at least be some conversation between defendant and the police as to what defendant and Bajwa would talk about. But a waiver of the right to counsel cannot be inferred just from an assumption that a lawyer may or may not have made. In situations like this, the police should request an express waiver by the client, with the lawyer’s express consent, preferably in writing. Where both the lawyer and the client think that cooperation is in the client’s best interests, such a waiver should not be hard to get. Here, for example, a waiver could have been, but was not, made part of the cooperation agreement signed on October 12.

Even if we could find, on this record, a waiver sufficient to authorize the police to interview defendant as a potential witness and informant, that waiver could not have extended to everything that happened here. The record shows that there was a clearly defined moment when the police learned — to their great surprise, according to their testimony — that defendant had actually stabbed the victim. At that point, they interrupted the meeting, talked to their supervisor, and gave Miranda warnings. Even if the police had reason to think that, until that moment, they were interviewing defendant with his lawyer’s approval, they could hardly have thought that the lawyer would consent to a further interview, with defendant as a target of the investigation. At the point where they interrupted their interview, the police should have called Schwarz, and proceeded no further with their questioning of defendant until and unless defendant waived his right to counsel in Schwarz’s presence.

Accordingly, the order of the Appellate Division should be reversed, defendant’s statements suppressed, and a new trial ordered.

Pigott, J.

(dissenting). The suppression court, based on the facts before it, found that there was no connection between the burglary with which defendant had been charged and the stabbing about which defendant claimed to have information (24 Misc 3d 1235[A], 2009 NY Slip Op 51757[U] [2009]). That finding was affirmed by the Appellate Division (100 AD3d 777, 778 [2d Dept 2012]). “[W]hen the Appellate Division adopts a trial court’s factual findings and the application of those facts to the applicable legal principles . . . that determination presents a mixed question of law and fact that we cannot overturn unless there is no record support for the trial court’s conclusion” (People v Guay, 18 NY3d 16, 22-23 [2011]). Because there is record support for the trial court’s determination that the two matters were not so closely related as to bar the detectives from questioning defendant about the stabbing, I would affirm the order of the Appellate Division.

In August of 2007, attorney John Schwarz was appointed by the court to represent defendant with respect to the burglary only. Defendant, hoping to obtain leniency on that charge, claimed to have information relative to an unrelated stabbing that had occurred in 2005. Schwarz and defendant met with detectives and a prosecutor on October 12, 2007 to discuss that information. Prior to the meeting, defendant and Schwarz executed a “queen-for-a-day” agreement whereby defendant agreed to respond truthfully to all questions asked of him. During that meeting, defendant implicated a friend in the stabbing. Defendant stated that he was in jail at the time of the stabbing, but the prosecutor, upon speaking with a representative from the jail, learned that defendant had been released 10 days before the stabbing. Nonetheless, defendant agreed to be “wired up” while speaking with his friend.

Six months later, defendant met with detectives and engaged in a discussion with them about acting as a cooperating witness against his friend. Schwarz was aware of the meeting but did not attend. As the detectives were questioning defendant about the stabbing, defendant unexpectedly confessed to it. After being read his Miranda rights, defendant signed a typewritten confession. At no time during this meeting did defendant ask for an attorney, state that he did not wish to speak with the detectives, or state that he had retained an attorney with respect to the stabbing case; nor did Schwarz at any time indicate that he was representing defendant on any charges other than the burglary, because there were no charges pending against the defendant relating to the stabbing.

The majority acknowledges that Schwarz was not retained to represent defendant in the stabbing matter, but suggests that he had an obligation, as part of his representation of defendant in the burglary case, to be cognizant of the possibility that defendant’s cooperation on the stabbing case would be deleterious to defendant (majority op at 645). I find this conclusion to be unwarranted and, in any event, of no moment.

From the point of view of the police, who were investigating a serious crime committed over two years earlier, the suppression court found they had no expectation that defendant was going to do anything other than assist them in that investigation. And it is apparent from this record that neither Schwarz nor defendant was under the impression that Schwarz represented defendant in the stabbing case.

The record evidence upon which the suppression court based its decision supports the finding that, as far as Schwarz was concerned, once defendant spoke with detectives at the proffer session in his presence and agreed to wear a wire, Schwarz’s work with respect to the stabbing was finished. Schwarz even provided the detectives with defendant’s cell phone number so they could contact defendant to arrange a meeting between themselves and defendant, there being no need for him to attend. The suppression court concluded that “[a]s far as all involved were concerned, there was no matter, other than the burglary, in which the defendant might be represented or desire representation” (2009 NY Slip Op 51757[U], *3). In light of the fact that there is evidence in the record supporting that conclusion, we must accord it deference.

The majority states that “[n]o responsible lawyer in Schwarz’s situation would concern himself with the burglary case alone, indifferent to the disaster that might strike defendant if he incriminated himself in the stabbing” (majority op at 645). Whether this is a fair characterization of Schwarz’s conduct is not a matter of concern for this Court. The focus should be on the conduct of the detectives who, as the suppression court found, acted properly under the facts and circumstances. Certainly, the detectives were prohibited from questioning defendant about the burglary — a charge for which defendant was represented — but they were not prohibited from questioning him about the stabbing.

Chief Judge Lippman and Judges Read, Rivera and AbdusSalaam concur; Judge Pigott dissents in an opinion.

Order reversed, defendant’s motion to suppress granted, and a new trial ordered.


author: Pigott, J.

text:
    [26 NE3d 769, 2 NYS3d 830]
    In the Matter of State of New York, Respondent, v Michael M., Appellant.
    Argued November 18, 2014;
    decided December 17, 2014

      POINTS OF COUNSEL

      Emmett J. Creahan, Mental Hygiene Legal Service, Fourth Judicial Department, Buffalo (Margot S. Bennett of counsel), for appellant.
    I. The implementation and revocation of strict and intensive supervision and treatment deprived appellant of his right to due process of law. (Executive Plaza, LLC v Peerless Ins. Co., 22 NY3d 511; Kansas v Hendricks, 521 US 346; O’Connor v Donaldson, 422 US 563; Ex parte Lange, 85 US 163; People v Roach, 226 AD2d 55; Matter of State of New York v Nelson D., 22 NY3d 233; Woe v Cuomo, 729 F2d 96, 469 US 936; Ohlinger v Watson, 652 F2d 775; State Farm Mut. Automobile Ins. Co. v Campbell, 538 US 408.) II. The least restrictive alternative doctrine should apply to sex offender civil management. (O’Connor v Donaldson, 422 US 563; Matter of Kesselbrenner v Anonymous, 33 NY2d 161; Rivers v Katz, 67 NY2d 485; Matter of Manhattan Psychiatric Ctr., 285 AD2d 189; Matter of Mary C., 34 Misc 3d 365; Baxstrom v Herold, 383 US 107; Jackson v Indiana, 406 US 715; Bell v Wolfish, 441 US 520; Matter of State of New York v Enrique T., 93 AD3d 158; Matter of State of New York v Joseph McD., 107 AD3d 725.)

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady, Barbara D. Underwood, Andrea Oser and Nancy A. Spiegel of counsel), for respondent.
    I. This appeal became moot when the challenged order of confinement was superseded by a new order of confinement after an annual review of respondent’s condition. (People v Jian Jing Huang, 1 NY3d 532; Matter of George L., 85 NY2d 295; Matter of Chenier v Richard W., 82 NY2d 830; Matter of David C., 69 NY2d 796; Matter of Rueda v Charmaine D., 17 NY3d 522; Matter of Anonymous, 55 NY2d 1021; Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of Anonymous v New York City Health & Hosps. Corp., 70 NY2d 972; Matter of S.J. v State of New York, 111 AD3d 1374, 22 NY3d 1128; Matter of Martinek v State of New York, 108 AD3d 1048.) II. The hearing evidence was legally sufficient to support the finding that respondent is a dangerous sex offender requiring civil confinement. (Heary Bros. Lightning Protection Co., Inc. v Intertek Testing Servs., N.A., Inc., 4 NY3d 615; Sage v Fairchild-Swearingen Corp., 70 NY2d 579; Matter of State of New York v Daniel F., 19 NY3d 1086.) III. The constitutional “least restrictive alternative” doctrine does not apply to dispositional determinations under Mental Hygiene Law article 10. (Kansas v Crane, 534 US 407; Kansas v Hendricks, 521 US 346; Matter of State of New York v Floyd Y., 22 NY3d 95; Matter of State of New York v Enrique T., 93 AD3d 158, 18 NY3d 976; Matter of Kesselbrenner v Anonymous, 33 NY2d 161; Rivers v Katz, 67 NY2d 485.) IV There is no record support for respondent’s claim that the State violated substantive due process in the implementation of the strict and intensive supervision and treatment regimen. (Matter of Lydia K., 112 AD2d 306, 67 NY2d 681; County of Sacramento v Lewis, 523 US 833; Collins v Harker Heights, 503 US 115; Rochin v California, 342 US 165; Cuyahoga Falls v Buckeye Community Hope Foundation, 538 US 188.)
   OPINION OF THE COURT

Pigott, J.

In this Mental Hygiene Law article 10 proceeding, we hold that the evidence was legally insufficient to justify revoking respondent’s strict and intensive supervision and treatment and imposing secure confinement. We base our holding on the distinction between a “sex offender requiring strict and intensive supervision” and a “dangerous sex offender requiring confinement,” as defined in the relevant statutes.

I

Respondent Michael M. pleaded guilty to sex offenses including sexual abuse in the first degree (Penal Law § 130.65 [3] [subjects a person under 11 years to sexual contact]) and was incarcerated for over a decade. When his term of imprisonment neared its end in 2008, the State commenced a civil commitment proceeding against him pursuant to Mental Hygiene Law article 10. Supreme Court found probable cause to believe that respondent was a dangerous sex offender requiring confinement, within the meaning of Mental Hygiene Law § 10.03 (e), and ordered him committed to a secure treatment facility pending the conclusion of the proceeding (see Mental Hygiene Law § 10.06).

Respondent moved to dismiss the article 10 petition and, at the same time, commenced a proceeding seeking a writ of habeas corpus directing his release, contending that — for procedural reasons not pertinent to this appeal — he was not a lawfully detained sex offender under Mental Hygiene Law § 10.03 (g) (1). In March 2010, Supreme Court dismissed the article 10 petition, granted respondent habeas corpus relief, and released him into the community. Eight months later, the Appellate Division reversed Supreme Court’s order (78 AD3d 1694 [2010]), but respondent remained in the community, without supervision, pending completion of his article 10 trial. There is no evidence of criminal activity by respondent during this period, which eventually lasted nearly two years.

In September 2011, Supreme Court held a bench trial on two issues: whether respondent suffered from a mental abnormality as defined by Mental Hygiene Law § 10.03 (i) (see Mental Hygiene Law § 10.07 [d]) and whether he suffered from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that he was likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility (see Mental Hygiene Law §§ 10.03 [e]; 10.07 [f]). Experts called by the State and by respondent agreed that he suffered from a mental abnormality within the meaning of article 10, but the State’s expert opined that respondent’s condition necessitated confinement whereas respondent’s expert insisted that he could be safely managed under “strict and intensive supervision and treatment” (SIST) (see Mental Hygiene Law § 10.03 [r]).

On November 15, 2011, Supreme Court imposed SIST, rather than confinement, and placed respondent under the custody and control of the New York State Department of Corrections and Community Supervision. A parole officer, assigned to supervise respondent, met with him on November 21 to review his SIST conditions.

Respondent was required to attend a sex offender treatment program at Mid-Erie Counseling and Treatment Services (Mid-Erie) in Buffalo. On November 22, 2011, a mental health counselor at Mid-Erie met with respondent for an “intake appointment.” She scheduled two meetings for him on December 6: a 12:30 p.m. appointment for a chemical dependency orientation program, at Mid-Erie’s main office on the East Side of Buffalo, and a 2:00 p.m. appointment with herself for an initial sex offender assessment, at the office of the New York State Division of Parole in downtown Buffalo. Respondent attended the 12:30 p.m. program, leaving Mid-Erie at about 1:45 p.m. and telling staff that he was on his way to a 2:00 p.m. appointment with the counselor. As respondent did not have a car of his own, his mode of transportation was a public bus.

Respondent did not appear at the parole office for his meeting with the mental health counselor at the scheduled time. Reached on his cell phone, respondent, in the judgment of Mid-Erie, failed to provide a reasonable excuse for his tardiness. Soon after 3:00 p.m., respondent arrived at the office, where he blamed the counselor for scheduling two appointments so close in time and expressed displeasure at being on SIST. A “team meeting” at Mid-Erie was scheduled for the following week.

Meanwhile, respondent was having financial difficulty. He had lost his job as a taxi driver when his employer learned that he was a registered sex offender, and was evicted from his apartment a week later for failure to pay rent. Respondent’s parole officer arranged for a residential placement at Grace House, which provides transitional housing for men who might otherwise be homeless. As a condition of placement at Grace House, residents are required to attend a Department of Social Services “job preparation program.” Respondent enrolled in the program but, according to his parole officer, “he was late on two occasions and on another occasion he did not bring in the required three applications.” On December 9, 2011, about a week after commencing the job preparation program, respondent was terminated from the program. As a result, on December 12, 2011, respondent was discharged from Grace House. His parole officer directed him to find shelter at the Buffalo City Mission.

At the “team meeting” at Mid-Erie on December 13, 2011, counselors raised concerns about several aspects of respondent’s circumstances, including the missed appointment with his counselor on December 6, his loss of employment and independent residence, and his termination from the job program and eviction from Grace House. Team members also expressed concerns about respondent’s relationship with a girlfriend who suffered from certain “mental health problems,” but did not allege that the relationship violated any of respondent’s SIST conditions. Kenneth Duszynski, forensic program director at Mid-Erie, was present at the meeting. As he later recalled, respondent refused to answer questions and became angry. His parole officer found respondent defensive and sarcastic. At the conclusion of the meeting, Duszynski discharged respondent from the sex offender treatment program at Mid-Erie for failure to cooperate. Treating the discharge as a violation of SIST conditions, respondent was arrested (see Mental Hygiene Law § 10.11 [d] [1]).

II

These events triggered a reevaluation of respondent under Mental Hygiene Law § 10.11 (d) (1). Dr. Paul Etu, a board-certified psychologist, interviewed respondent at the Erie County Holding Center on December 15. Respondent, when questioned by Dr. Etu about his sexual urges, indicated that he was “learning to control the urges” by means of certain “tools” he had learned, in particular diverting his attention from young girls he encountered or, failing that, moving rapidly away from them. Respondent described this “relapse prevention plan” as a fight-or-flight response. He also mentioned supportive family members and church ministers, as well as a sexual relationship with his girlfriend. On the other hand, Dr. Etu found respondent exhibited a combative attitude when SIST conditions were discussed. He told Dr. Etu that he felt that he had served his time for his sex offenses and was being unfairly treated. In particular, respondent objected to his counselor’s criticism of his relationship with the girlfriend who suffered from “mental health” issues: “She can’t tell me that,” respondent told Dr. Etu, “She can’t tell me who to love.”

Dr. Etu issued a report, opining that respondent was a dangerous sex offender requiring confinement. Dr. Etu noted that respondent had “displayed . . . deviant sexual interest in young, female children” and “acknowledged that he still [had] urges in this regard.” He further opined that respondent appeared “to have an ingrained sense of entitlement and a disdain for the therapeutic community,” which respondent perceived as antagonistic, rather than supportive.

On December 19, 2011, barely a month after Supreme Court had reached its SIST decision, the State petitioned for an order pursuant to Mental Hygiene Law § 10.11 (d), revoking respondent’s release to SIST and confining him to a secure treatment facility. In addition to the report from Dr. Etu, the State submitted an affidavit and incident report from respondent’s parole officer and a letter from Duszynski opining that respondent required confinement. Supreme Court found probable cause to believe that respondent was a dangerous sex offender requiring confinement and ordered him committed to a secure treatment facility pending a hearing, pursuant to Mental Hygiene Law § 10.11 (d) (4). Respondent moved to dismiss the petition or, in the alternative, to modify the SIST conditions to permit treatment through another provider.

At a two-day hearing in March 2012, Supreme Court heard testimony from Dr. Etu, Mr. Duszynski, respondent’s parole officer, and his counselor. Dr. Etu opined, consistently with his report, that respondent was a dangerous sex offender requiring confinement. He testified that respondent had elaborated at his interview “how at times [sexual] urges would come on and how he would try to fight them off and basically [had] fought them off’ but “was still having difficulty with that.” Dr. Etu further testified that respondent had told him that, although he now understood that it had been wrong to believe that his victims enjoyed sexual activity with him or “came on to him,” the idea still came “into his head once in a while.”

Dr. Etu further supported his conclusion by presenting evidence of “static and dynamic risk factors.” According to Dr. Etu, these factors, in particular the Static-99-R test, indicated that respondent had a 23% chance of “reoffending” within the next 10 years and a 46% chance of “reoffending” in his lifetime. Dr. Etu also testified that respondent “was resistant to counseling,” did not trust the counselors at Mid-Erie, and could not “work with them.”

Duszynski testified that respondent had been sarcastic and defensive at the December 13 “team meeting.” Asked why respondent had been discharged from Mid-Erie, Duszynski’s assessment was that respondent was not willing to follow “the rules of either treatment or supervision,” placing him “in a very high risk situation.”

On April 19, 2012, Supreme Court determined that the State had proved by clear and convincing evidence that respondent was a dangerous sex offender requiring confinement (see Mental Hygiene Law §§ 10.11 [d] [4]; 10.07 [f]). Accordingly, the court revoked respondent’s release on SIST and committed him to a secure treatment facility. Nevertheless, Supreme Court’s written decision was highly critical of Mid-Erie and of respondent’s parole officer.

“It is clear that the Parole Officer and therapists were put off by [Michael M.]. The animus projected toward [Michael M.] throughout this proceeding literally was pooling on the courtroom floor. What is the genesis of this animus? Repulsion over [Michael M.’s] criminal acts? Repulsion over [Michael M.]’s appearance? Displeasure over his past criticism of Parole or Mid-Erie? A general reluctance to perform the work necessary to service, and perhaps benefit [Michael M.] and the community? We will never know. . . . There is a word for that: Callousness.”

Respondent perfected his appeal and additionally petitioned for discharge upon annual review (see Mental Hygiene Law § 10.09). Supreme Court in the county of respondent’s confinement issued an order of continued confinement, upon the yearly review, before respondent’s appeal was calendared, and the State moved to dismiss the appeal as moot. The Appellate Division affirmed on the merits (109 AD3d 1181 [4th Dept 2013]). This Court granted respondent leave to appeal (22 NY3d 1050 [2014]). Under the circumstances of this case, the appeal is not moot, because the continued confinement order was affected by the order challenged here, changing respondent’s level of disposition from SIST to secure confinement. However, we disagree with the Appellate Division on the merits, and now reverse.

m

Respondent raises three arguments: that Supreme Court failed to apply “the least restrictive alternative doctrine” to his civil management; that the evidence at trial was legally insufficient to demonstrate clearly and convincingly that he was unable to control his sexual conduct to the extent that he was likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility; and that the manner in which his SIST was implemented and revoked violated his right to due process of law.

In arguing that a doctrine of the least restrictive alternative should apply in proceedings under Mental Hygiene Law article 10, respondent relies on certain statutes that incorporate the doctrine, including provisions of the Mental Hygiene Law governing assisted outpatient treatment of the mentally ill (see Mental Hygiene Law § 9.60 [h] [4] [ii]; [i] [3]; [j] [2]). The right to a least restrictive alternative, he argues, should likewise apply to convicted sex offenders. The Appellate Division correctly rejected respondent’s contention (109 AD3d at 1182, citing Matter of State of New York v Gooding, 104 AD3d 1282 [4th Dept 2013], lv denied 21 NY3d 862 [2013], and Matter of State of New York v Enrique T., 93 AD3d 158, 173 [1st Dept 2012], lv dismissed 18 NY3d 976, 977 [2012]). Least restrictive alternative principles are not automatically transferable from one article of the Mental Hygiene Law to another. “[S]ex offenders in need of civil commitment are a different population from traditional mental health patients, who have different treatment needs and particular vulnerabilities” (Mental Hygiene Law § 10.01 [g]). Moreover, Mental Hygiene Law article 10, as written, is already designed to provide courts with a mechanism for deciding whether the mental condition of a sex offender suffering from a mental abnormality is so extreme that the more restrictive alternative of confinement is warranted or whether, on the other hand, the least restrictive option, namely SIST, is permitted. The statute, then, implicitly contains its own “least restrictive alternative doctrine.”

IV

Respondent’s second argument is based on legal insufficiency. Respondent contends that as a matter of law the evidence before Supreme Court was not sufficient to show, by clear and convincing evidence (see Mental Hygiene Law § 10.07 [f]), that he required confinement pursuant to Mental Hygiene Law article 10. We agree.

To begin, the standards applicable in a proceeding seeking confinement pursuant to Mental Hygiene Law § 10.11 (d) (4), after an alleged SIST violation, are the same as those applicable when the proceeding is brought while the sex offender is still incarcerated. “The court shall make its determination of whether the respondent is a dangerous sex offender requiring confinement in accordance with the standards set forth in subdivision (f) of section 10.07” (Mental Hygiene Law § 10.11 [d] [4]). Section 10.07 in turn relies on the definitional provisions of Mental Hygiene Law § 10.03.

The Mental Hygiene Law defines “mental abnormality” as “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct” (Mental Hygiene Law § 10.03 [i] [emphasis added]). By contrast, a “dangerous sex offender requiring confinement” is defined in the Mental Hygiene Law as “a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (Mental Hygiene Law § 10.03 [e] [emphasis added]). The statute — which goes on to describe a “sex offender requiring strict and intensive supervision” as a “detained sex offender who suffers from a mental abnormality but is not a dangerous sex offender requiring confinement” (Mental Hygiene Law § 10.03 [r]) — clearly envisages a distinction between sex offenders who have difficulty controlling their sexual conduct and those who are unable to control it. The former are to be supervised and treated as “outpatients” and only the latter may be confined.

The testimony in this case tended to show only that respondent was struggling with his sexual urges, not that he was unable to control himself. Dr. Etu testified that respondent was “having difficulty” with warding off urges to have sex with very young girls, but not that he was unable to do so. In fact, Dr. Etu recounted certain practical “tools” that respondent successfully used “to control [his] urges.” He would force his attention away from young girls he encountered or remove himself from their vicinity. The fact that respondent had difficulty warding off illicit sexual urges shows that respondent suffered at the time from “mental abnormality” within the meaning of Mental Hygiene Law article 10, which he does not now deny. But more than this — the inability to control sexual misconduct — would have had to be shown to prove that respondent was a dangerous sex offender requiring confinement.

Notably, the record reveals nothing relevant to the issue of respondent’s sexual control that occurred between November 15, 2011, when Supreme Court imposed SIST rather than civil confinement, and April 19, 2012, when Supreme Court ordered confinement. What happened during this time was that respondent lost his job, and was evicted from his apartment for failure to pay rent; was late for one appointment; expressed, perhaps with some sarcasm, his distaste for SIST; was discharged from a job application program, with the result that he was evicted from transitional housing; and was discharged from a sex offender treatment program. Whatever else might be said about the personality traits or the social circumstances that led respondent so inexorably to homelessness and then to confinement, they do not give any support to the proposition that he had become unable to govern his sexual conduct.

We conclude that the evidence, considered in the light most favorable to the State, was insufficient to support the trial court’s finding that respondent had such an inability to control his behavior that he was likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility. Consequently, reversal is required, and it is unnecessary for us to consider respondent’s due process arguments.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

Chief Judge Lippman and Judges Smith, Rivera and AbdusSalaam concur; Judge Read dissents and votes to affirm for reasons stated in the memorandum at the Appellate Division (109 AD3d 1181 [2013]).

Order reversed, without costs, and matter remitted to Supreme Court, Niagara County, for further proceedings in accordance with the opinion herein.

      . Michael M. attended all of his appointments with his parole officer in a timely manner.

      . Michael M.’s own recollection was that he was late by 10 minutes “due to the bus schedule” on one occasion, he submitted incomplete paperwork on another occasion because he was “worried about transportation back to downtown and the curfew at Grace House,” and he produced inaccurate information on job applications on the third occasion.

      . The record contains a letter from Duszynski to Michael M.’s parole officer, dated December 12, 2011, i.e. the day before the “team meeting,” discharging Michael M. from treatment at Mid-Erie and requesting that the parole officer take Michael M. into custody. No explanation has been provided for this “pre-meeting” determination. We assume for the purposes of this factual recitation that the date on this letter is a typographical error, and that it was written in light of events on December 13.

      . The expert testimony did not adequately connect the so-called “static and dynamic risk factors” to the conclusion that Michael M. was unable to control his sexual conduct.


author: Chief Judge Lippman.

text:
    [26 NE3d 1146, 3 NYS3d 291]
    In the Matter of Tyrone D., Appellant, v State of New York et al., Respondents.
    Argued January 13, 2015;
    decided February 12, 2015

      POINTS OF COUNSEL

      D.J. & J.A. Cirando, Esqs., Syracuse {John A. Cirando, Bradley E. Keem and Elizabeth deV. Moeller of counsel), for appellant.
    I. A motion for change of venue was available and was incorrectly denied. (Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; Matter of Tonis v Board of Regents of Univ. of State of N.Y., 295 NY 286; Matter of State of New York v Zimmer, 26 Misc 3d 299; Matter of State of New York v Enrique T., 93 AD3d 158.) II. Appellant did not waive his annual review hearing by declining to appear. (People v Burts, 64 AD2d 283; People v La Barbera, 274 NY 339; People v Arrahman, 83 AD3d 680; People v Brooks, 308 AD2d 99, 1 NY3d 502; People v Erb, 59 AD3d 1020; Matter of State of New York v Floyd Y., 22 NY3d 95.) III. Good cause was not shown to dispense with testimony and simply rely on the expert’s report. (Matter of State of New York v J.A., 21 Misc 3d 806; Matter of State of New York v Floyd Y., 22 NY3d 95; Matter of State of New York v Mark S., 87 AD3d 73, 17 NY3d 714; People v Mingo, 12 NY3d 563, 20 NY3d 852.) IV The evidence did not support the determination that the clear and convincing evidence showed that appellant is a dangerous sex offender requiring confinement. (Matter of State of New York v Farnsworth, 75 AD3d 14, 15 NY3d 848; Matter of State of New York v Walter W., 94 AD3d 1177, 19 NY3d 810; Matter of State of New York v Enrique T., 93 AD3d 158, 18 NY3d 976; Matter of State of New York v Trombley, 98 AD3d 1300, 20 NY3d 856; Matter of State of New York v Timothy EE., 97 AD3d 996.) V Appellant did not receive the effective assistance of counsel. (Matter of State of New York v Floyd Y., 22 NY3d 95; Matter of State of New York v Campany, 77 AD3d 92, 15 NY3d 713; Lewis v Lewis, 70 AD3d 1432; Matter of Jenna KK., 50 AD3d 1216, 11 NY3d 703; People v Baldi, 54 NY2d 137; People v Hobot, 84 NY2d 1021; People v Caban, 5 NY3d 143; People v Turner, 5 NY3d 476; People v Benevento, 91 NY2d 708.)

      Eric T. Schneiderman, Attorney General, Albany {Laura Etlinger, Barbara D. Underwood and Andrea Oser of counsel), for respondents.
    I. Petitioner’s procedural claims are academic, and should therefore not be reviewed by this Court. (Siegmund Strauss, Inc. v East 149th Realty Corp., 20 NY3d 37; Matter of Aho, 39 NY2d 241; Oakes v Patel, 20 NY3d 633; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801; Matter ofHearst Corp. v Clyne, 50 NY2d 707.) II. If the Court were to review petitioner’s procedural claims, it should reject them. (Matter of State of New York v Williams, 92 AD3d 1271, 96 AD3d 1513; Matter of State of New York v Steinmetz, 101 AD3d 1726; Matter of State of New York v Carter, 100 AD3d 1438; Matter of State of New York v Zimmer, 63 AD3d 1562; Rochester Drug Coop., Inc. v Marcott Pharmacy N. Corp., 15 AD3d 899; O’Brien v Vassar Bros. Hosp., 207 AD2d 169; Andros v Roderick, 162 AD2d 813; Humphrey v State of New York, 60 NY2d 742; Matter of Granger v Misercola, 21 NY3d 86; People v Winchell, 64 NY2d 826.) III. Petitioner’s sole substantive claim — that the court should not have ordered his continuing confinement — was properly rejected by both courts below.
   OPINION OF THE COURT

Chief Judge Lippman.

The primary issue presented by this appeal is whether Mental Hygiene Law article 10 authorizes a motion for a change of venue in an annual review hearing. We hold that the statute does allow venue to be changed in article 10 hearings upon an appropriate showing of good cause. However, since the motion at issue failed to establish the requisite good cause, the requested change of venue was properly denied.

Petitioner Tyrone D. was adjudicated a dangerous sex offender in need of confinement to a secure treatment facility and was committed to Central New York Psychiatric Center in 2010. The following January, the Office of Mental Health (OMH) provided petitioner with notice of his annual right to petition for discharge under Mental Hygiene Law § 10.09 (a). Petitioner checked the box on the form provided, indicating that he did “not wish to waive [his] right to petition for discharge,” and commenced a proceeding in Oneida County seeking his discharge from confinement.

Petitioner moved to change venue for the annual review hearing from Oneida County to New York County, citing to Mental Hygiene Law § 10.08 (e) and CPLR 510. In support of the motion, his counsel submitted an affirmation asserting that holding the hearing in Oneida County would make “it extremely inconvenient, burdensome and impossible for his family to travel there to appear at his hearing as their finances are limited and some family members have physical health issues.” Counsel further opined that most of the potential witnesses — e.g., those who might need to testify about the potential local resources, including available treatment programs — lived in the New York County area and that it would likewise be burdensome and inconvenient to require them to travel to Oneida County. Finally, counsel submitted that a judge based in New York County would be “more attuned to the local situation” and better suited to making a determination regarding petitioner’s status. The affirmation did not identify any particular potential witness or provide the subject of any proposed testimony.

In opposition, the State argued that article 10 did not allow for a change of venue in annual review hearings. The State also maintained that, assuming petitioner was permitted to move for a change of venue, the motion in this case failed to satisfy the good cause requirement of Mental Hygiene Law § 10.08 (e).

Supreme Court denied the motion. The court found that, although Mental Hygiene Law § 10.08 (e) did allow venue to be changed for annual review hearings, counsel’s conclusory affirmation in support of the motion failed to establish the requisite good cause.

Petitioner then refused to be interviewed by OMH’s psychiatric examiner, Trica Peterson, Ph.D., for the purpose of his annual psychiatric examination. Based on a review of the available records, Peterson generated a report concluding that petitioner met the criteria for diagnoses of personality disorder, not otherwise specified with antisocial traits, and psychopathy, as well as a provisional diagnosis of sexual sadism. In Dr. Peterson’s professional opinion, petitioner remained a dangerous sex offender in need of confinement. Although the court also appointed an independent psychiatric examiner to conduct an evaluation on petitioner’s behalf, petitioner again refused to be interviewed. Thereupon, the psychologist declined to prepare a report. The Commissioner of OMH issued a determination finding that petitioner was currently a dangerous sex offender in need of confinement.

On the date of the scheduled annual review hearing, petitioner was not present and his counsel advised the court that petitioner did not wish to appear. The court then asked, “[s]o, he didn’t want to come and he doesn’t want his hearing?,” to which counsel responded, “[r]ight.” The court inquired whether petitioner had signed anything to that effect and counsel indicated that she had “sent him a letter confirming that.” The court then stated “Okay. Well, he doesn’t want his review, that’s his choice. So, I’ll deem his nonappearance a waiver and state the representations he’s made to support that way, accordingly.” The hearing was then terminated.

Supreme Court subsequently issued an order finding that there was no substantial issue as to whether petitioner continued to have a mental abnormality predisposing him to commit sex offenses. The court further found that there was clear and convincing evidence that petitioner remained a dangerous sex offender in need of confinement to a secure treatment facility.

The Appellate Division affirmed (106 AD3d 1488 [4th Dept 2013]). The Court found that the nonfinal order denying the change of venue motion necessarily affected, and was reviewable on appeal from, the final order (see CPLR 5501 [a] [1]). The Court then determined that Mental Hygiene Law § 10.08 authorized a change of venue only for article 10 trials, not for hearings. The Court found that petitioner had, through counsel, waived his right to an annual review hearing and rejected his remaining contentions as without merit. We granted petitioner’s motion for leave to appeal (22 NY3d 852 [2013]), and now affirm.

We agree with the Appellate Division that, in these unique circumstances, the nonfinal order denying petitioner’s motion for a change of venue necessarily affected the final order and is therefore reviewable on this appeal.

Relating to venue, Mental Hygiene Law § 10.08 (e) 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.” The State no longer advocates the position it took earlier in this litigation and now concedes that venue can be changed at either a hearing or a trial under article 10, provided that the petitioner has demonstrated good cause. Although it is no longer incumbent upon us to decide this issue, we agree that the better interpretation of the statute is the one advocated by the parties. The construction of the provision is somewhat ambiguous, in that, if the legislature intended to restrict a change of venue to article 10 trials, the reference to “any hearing or trial” would appear to be superfluous. We see no need to read a restriction into the statute limiting annual review hearings solely to the few counties where secure treatment facilities are located.

However, petitioner failed to establish good cause for the change of venue. As noted above, the statute provides that good cause “may include considerations relating to the convenience of the parties or witnesses or the condition of the respondent” (Mental Hygiene Law § 10.08 [e]). The affirmation submitted in support of the motion did urge, generally, that it would be inconvenient and burdensome for unnamed family members and other potential witnesses to travel to Oneida County, but failed to identify a single witness that would testify on petitioner’s behalf. Nor did the affirmation set forth the subject of any proposed testimony — let alone identify any information that would be potentially relevant to the issue of whether petitioner remained a dangerous sex offender in need of confinement. Therefore, the motion for a change of venue was properly denied.

Petitioner further claims that he did not waive his annual review hearing by failing to appear. The colloquy between Supreme Court and counsel on this issue was undeniably perfunctory, especially where, as here, petitioner had previously indicated, by checking the appropriate box on the notice and waiver form, that he did not intend to waive his hearing. It is conceivable that a petitioner could forgo his or her appearance at the hearing without waiving the hearing itself. The court should, therefore, satisfy itself that a petitioner truly intends to waive the hearing (see e.g. Mental Hygiene Law § 10.09 [d]). Under the circumstances presented here, however, the court was entitled to rely upon counsel’s representation that petitioner did not want his annual review hearing (see generally People v Flinn, 22 NY3d 599, 602 [2014] [“a lawyer may be trusted to explain rights to his or her client, and to report to the court the result of that discussion”]).

Petitioner’s remaining contentions are without merit.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Judges Read, Pigott, Rivera and Abdus-Salaam concur; Judges Stein and Fahey taking no part.

Order affirmed, without costs.