        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

920
CA 12-01334
PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF THE APPLICATION FOR DISCHARGE
OF CHARLES BROOKS, CONSECUTIVE NO. 262223, FROM
CENTRAL NEW YORK PSYCHIATRIC CENTER PURSUANT TO
MENTAL HYGIENE LAW § 10.09, PETITIONER-APPELLANT,

                    V                               MEMORANDUM AND ORDER

STATE OF NEW YORK, NEW YORK STATE OFFICE OF
MENTAL HEALTH AND NEW YORK STATE DIVISION OF
PAROLE, RESPONDENTS-RESPONDENTS.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF
COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Oneida County (Joseph
E. Fahey, A.J.), entered June 13, 2012 in a proceeding pursuant to
Mental Hygiene Law article 10. The order continued the commitment of
petitioner to a secure treatment facility.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner was previously determined to be a
dangerous sex offender requiring civil confinement and was committed
to a secure treatment facility (see Mental Hygiene Law § 10.01 et
seq.; Matter of State of New York v C.B., 88 AD3d 599, 599, appeal
dismissed and lv denied 18 NY3d 905). Petitioner now appeals from an
order continuing his confinement in a secure treatment facility (see §
10.09 [h]). We reject petitioner’s contention that respondents failed
to prove by clear and convincing evidence that he is a dangerous sex
offender requiring continued confinement (see Matter of Sincere KK. v
State of New York, 111 AD3d 1083, 1083-1084, lv denied 22 NY3d 862;
Matter of William II. v State of New York, 110 AD3d 1282, 1283). To
the extent that petitioner contends that respondents’ expert witness
improperly relied upon hearsay testimony, we conclude that Supreme
Court is presumed to have properly given any hearsay statements
limited legal significance in making its determination, and that any
evidentiary error is harmless (see Matter of State of New York v Mark
S., 87 AD3d 73, 80, lv denied 17 NY3d 714).

     As the First Department concluded on his appeal from the initial
                                 -2-                           920
                                                         CA 12-01334

determination under Mental Hygiene Law article 10, “there is no merit
to [petitioner’s] argument that he is entitled to release on the
ground that his initial confinement under article 9 of the Mental
Hygiene Law had been illegal” (C.B., 88 AD3d at 599-600; see People ex
rel. Joseph II. v Superintendent of Southport Corr. Facility, 15 NY3d
126, 133, rearg denied 15 NY3d 847). Indeed, petitioner and others
similarly situated challenged their confinement under article 9 in
State of New York ex rel. Harkavy v Consilvio (7 NY3d 607; see Matter
of State of New York v C.B., 18 Misc 3d 1136[A], *1), and the Court of
Appeals determined that the petitioners were not entitled to immediate
release, but rather should be afforded the appropriate hearing (see
Harkavy, 7 NY3d at 614; see also State of N.Y. ex rel. Harkavy v
Consilvio, 8 NY3d 645, 651-652), which petitioner received here.

     Contrary to petitioner’s contention, the court properly denied
his motion for a change of venue because the court did not have the
authority to change venue in a hearing held pursuant to Mental Hygiene
Law § 10.09 (see Matter of Davis v State of New York, 106 AD3d 1488,
1489, lv granted 22 NY3d 852). In any event, petitioner failed to
establish good cause for a change of venue inasmuch as he made only
conclusory statements regarding the convenience of his witnesses (see
Matter of State of New York v Steinmetz, 101 AD3d 1726, 1727).

     We reject petitioner’s further contention that the court erred in
denying his request to substitute counsel or to proceed pro se.
Petitioner failed to show good cause for substitution (see People v
Sides, 75 NY2d 822, 824). Assuming, arguendo, that petitioner had a
right to self-representation (see Matter of State of New York v Raul
L., 120 AD3d 52, ___; see also Matter of State of New York v Timothy
BB., 113 AD3d 18, 21, appeal dismissed and lv denied 23 NY3d 941), we
conclude that petitioner did not make an unequivocal request to
proceed pro se (see People v Gillian, 8 NY3d 85, 88; People v
McIntyre, 36 NY2d 10, 17).




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
