The respondent in this MHL Article 10 proceeding moves for an order transferring him to a facility within ninety miles of Poughkeepsie, New York pending trial of the underlying petition. The relevant facts are not in dispute on this application. The respondent was incarcerated in 2004 following a guilty plea to rape in the third degree. The respondent's scheduled release date was April 27, 2007. On April 24, 2007, pursuant to MHL Article 10, the case review team issued a notice of determination concluding that the respondent was a sex offender requiring civil management. Thereafter, the underlying petition in this proceeding was filed by the attorney general. On June 18, 2007, this Court conducted a probable cause hearing and found probable cause that respondent is a sex offender requiring civil management pursuant to MHL §10.06(k). This Court committed respondent to a secure treatment facility designated by the Commissioner of the New York State Office of Mental Health and scheduled a trial as required by statute. The trial was subsequently adjourned to October 18, 2007. The Commissioner of the New York State Office of Mental Health transferred the respondent to the Saint Lawrence Psychiatric Center in Ogdensburg, New York for secure retention pending trial. The respondent argues that the geographical distance of the facility from Dutchess County, the place of trial, interferes with his right to have effective legal counsel as it prevents effective case preparation. The Mental Hygiene Legal Service attorney assigned to represent respondent is located in the regional office located in Dutchess County. The attorney general's office has indicated its willingness to transport the respondent to Dutchess County so that counsel could consult with their client and so that he would be able to meet with any expert.

The legislative findings articulated in Article 10 include the following: [*2]

"That sex offenders in need of civil commitment are a different population from traditional mental health patients, who have different treatment needs and particular vulnerabilities. Accordingly, civil commitment of sex offenders should be implemented in ways that do not endanger, stigmatize, or divert needed treatment resources away from such traditional mental health patients." (MHL §10.01[g].)

The statute specifically provides that if the court determines that probable cause has been established, as in the instant proceeding, "the court shall order that the respondent be committed to a secure treatment facility designated by the commissioner for care, treatment and control..." (MHL §10.06[k].)

The legislature has placed the responsibility for determining a proper secure facility for patients retained pursuant to Article 10. The respondent does not assert that the petitioner is absolutely preventing access to counsel or intentionally interfering with preparations for the upcoming trial. Instead, the respondent argues that the determination to place him in Saint Lawrence Psychiatric Center consequently prohibits assigned counsel from effectively representing respondent. This Court cannot concur in that analysis. The petitioner has assured the respondent and this Court that it will undertake the responsibility of transporting the respondent to the local venue in the event that counsel is not able to travel to the secure facility. The petitioner has further indicated that it will transport the respondent to the local venue in order to permit the respondent's expert to conveniently examine him. Under the circumstances presented, there is no violation of the respondent's right to counsel. More significantly, there is no provision in the statute which would permit this Court to override the determination of the commissioner as to an appropriate secure treatment facility. Therefore, it is ordered that the respondent's motion is denied.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

August 29, 2007

ENTER

Hon. James D. Pagones, A.J.S.C.

TO:

082807 decision&order