SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
32
CA 11-01429
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.
IN THE MATTER OF THE STATE OF NEW YORK,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
NUSHAWN WILLIAMS, ALSO KNOWN AS
SHYTEEK JOHNSON, RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MICHAEL J. CONNOLLY OF
COUNSEL), FOR PETITIONER-APPELLANT.
DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL),
FOR RESPONDENT-RESPONDENT.
Appeal from an order of the Supreme Court, Chautauqua County
(John L. Michalski, A.J.), entered April 18, 2011 in a proceeding
pursuant to Mental Hygiene Law article 10. The order granted
respondent’s motion for a change of venue.
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the motion is
denied.
Memorandum: Petitioner appeals from an order granting
respondent’s motion for a change of venue in this Mental Hygiene Law
article 10 proceeding. We note at the outset that we affirmed the
order denying respondent’s motion to dismiss the petition (Matter of
State of New York v Williams, ___ AD3d ____ [Feb. 17, 2012]). The
petition was originally filed in Supreme Court, Erie County, because
respondent was confined in a correctional facility located therein
and, following a hearing, the court concluded that there was probable
cause to believe that respondent required civil management and
pretrial detention (see § 10.06 [g]). Respondent moved for, inter
alia, a change of venue from Erie County to Chautauqua County, the
county in which he was convicted of the underlying offenses, on the
ground that the case had “garnered unprecedented media coverage,” and
thus it was unlikely that he could receive a fair trial in Erie
County. Petitioner did not oppose the change in venue. Supreme
Court, Erie County, granted the motion and transferred the proceeding
to Chautauqua County.
Respondent thereafter moved for a change of venue back to Erie
County, on the same ground upon which his prior motion was based,
i.e., that he cannot receive a fair trial in the county in question.
-2- 32
CA 11-01429
We conclude that Supreme Court, Chautauqua County, erred in granting
respondent’s motion. Mental Hygiene Law § 10.08 (e) authorizes a
court to change the venue of the proceeding “to any county for good
cause, which may include considerations relating to the convenience of
the parties or witnesses . . . .” To establish good cause for a
change of venue, the party seeking such relief must set forth specific
facts sufficient to demonstrate a sound basis for the transfer (see
Matter of State of New York v Zimmer [appeal No. 2], 63 AD3d 1562).
Conclusory statements unsupported by facts are insufficient to warrant
a change of venue (see id.). Here, respondent failed to make any
factual or evidentiary showing that he would be unable to obtain a
fair trial in Chautauqua County or that a transfer was necessary for
the convenience of the parties or witnesses.
Entered: February 17, 2012 Frances E. Cafarell
Clerk of the Court