A probable cause hearing was held before this court on September 21, 2007. This court determined that there was probable cause to believe that the respondent is a sex offender requiring civil management pursuant to Mental Hygiene Law §10.06(k). Following this court's determination, the respondent was transferred to St. Lawrence Psychiatric Center, a facility almost four hundred (400) miles away from Bronx County where his attorney's office is located.

The trial of this matter is scheduled for November 5, 2007. Respondent's counsel asserts that the petitioner commenced the proceeding in Bronx County and that the respondent should be housed close enough to Bronx County to afford ready and convenient access to his client to adequately prepare for trial. He asserts that the respondent has a right to counsel for the trial [*2]following a probable cause determination and that the respondent's right to counsel cannot be curtailed by housing him hundreds of miles away from his lawyer, which would make it difficult to meaningfully prepare for trial. Respondent's counsel argues that in order to meet with the respondent, review records and prepare for trial, an extra day's work would be required just for traveling which would limit the time he has to prepare for trial.

Respondent's counsel also refers to the impact the lengthy travel will have on the respondent in transporting him to the court from the facility in upstate New York. Respondent contends that even though the State of New York has the discretion under Mental Hygiene Law §10.06(k)(I ) to choose the secure facility that houses the respondent, said provision should not be read to allow the State unfettered discretion to curtail the respondent's right to adequate representation of counsel.

Respondent cites to the unreported decision of Judge Samuel D. Hester of Supreme Court, Oneida County, rendered on May 30, 2007, in the case of People v. Breeden, wherein Judge Hester ordered the transfer of the respondent from a secure facility in St. Lawrence County to a secure facility in Oneida County which was the county where the Attorney General's office venued the proceeding and the county where the probable cause hearing took place. Judge Hester found that the petitioner failed to show a compelling reason to have the respondent located in St. Lawrence County and made a distinction between a person who has been committed following a trial or a hearing and the respondent in that case who had been detained based upon a probable cause finding and who had not had a trial to determine whether he will be committed pursuant to a final order.

Respondent's counsel requests that respondent be transferred to Kirby Forensic Psychiatric Center or another secure facility in close proximity to Bronx County.

Petitioner opposes the motion and asserts that respondent's counsel is requesting that this court deviate from the law without any legal justification. Petitioner cites to Mental Hygiene Law §10.06(k) and asserts that the commissioner, not the court, has the discretion to designate the facility where the respondent is placed. Petitioner submits an affidavit from Richard P. Miraglia, Associate Commissioner for the Division of Forensic Services in the New York State Office of Mental Health, wherein he details the different concerns that go into the decision-making process of where a respondent will be housed. Petitioner cites to a portion of Mental Hygiene Law §10.10(e) and asserts that said statute indicates that the separation of Article 10 respondents from other Mental Hygiene patients has been legislatively mandated and as such Article 10 respondents cannot be housed with the Office of Mental Health's traditional patients.

Petitioner argues with respect to the separation of powers between the executive, legislative and judicial branches of government and asserts that the commissioner, not the court, is given the sole discretion to decide where the respondent shall be placed. Petitioner contends that there is no basis for the court to overturn the discretionary determination of the commissioner to place the respondent at St. Lawrence Psychiatric Center. Moreover, petitioner [*3]asserts that respondent's attorney has not demonstrated a lack of access to his client and that the Associate Commissioner has demonstrated a willingness to transport the respondent to consult with his attorney and meet with his retained psychiatric examiner.

In his affidavit, Mr. Miraglia states that the Commissioner has removed the designation of Kirby Forensic Psychiatric Center as a secure treatment facility and "there is not longer a unit operated there for patients being considered for commitment under Article 10." (Miraglia Aff., p. 4, para. 11). Mr. Miraglia states that patients from Kirby were transferred to Manhattan Psychiatric Center which has twenty (20) beds in operation, eight (8) of which are currently empty. Mr. Miraglia further states, "Although Manhattan is currently designated a secure treatment facility, as defined in MHL 10.03(o), it is not a secure facility in the sense that it is a civil hospital that does not have a perimeter fence to prevent patients from leaving the facility. It would be preferable not to house any Article 10 respondents in Manhattan, however, it would not be practical to transport respondents from either [St. Lawrence Psychiatric Center] or [Central New York Psychiatric Center] on a daily basis for trials that might be venued in New York City since they cannot be housed with traditionally mentally ill patients. Hence space being maintained at Manhattan can be used for temporary housing during trials." (Miraglia Aff., p. 6, para. 18).

In reply, respondent's counsel requests that this court convert the motion to an Article 78 proceeding for purposes of determining that the Commissioner's failure to allot bed space in or around New York City for the pretrial detention of persons proposed for Article 10 commitment is an abuse of discretion. Respondent further argues that the Office of Mental Health, concedes that there are empty beds at Manhattan Psychiatric Center that can be used for the respondent and that respondent's commitment is only temporary for up to sixty (60) days while he prepares for trial. Respondent's counsel argues that Mr. Miraglia has offered no compelling reason why the vacant beds at Manhattan Psychiatric Center should not be used for persons like the respondent, who are awaiting trial.

Respondent's counsel further argues that Mr. Miraglia appears confused about the purpose of the respondent's current commitment in that Mr. Miraglia stated in his affidavit that the respondent herein was found to be in need of civil management pursuant to Mental Hygiene Law §10.06(k) at his probable cause hearing. Respondent's counsel argues that the court merely found that there was probable cause to believe that respondent was a sex offender requiring civil management and the distinction is important because the respondent cannot receive treatment under Article 10 until he is found to suffer from a mental abnormality that would predispose him to commit sex offenses pursuant to Mental Hygiene Law §10.10(a). Respondent does not contest that if he is ultimately found after trial to be a sex offender subject to civil management that the Office of Mental Health will be authorized to assign him to any appropriate secure treatment facility to receive care and treatment. However, since such a finding has not been made, the sole purpose of his detention is to prepare for trial.

The respondent is correct in his contention that there has not yet been a finding that he has been found to be a dangerous sex offender requiring confinement and commitment to a [*4]secure treatment facility. This court found after a probable cause hearing that there is probable cause to believe that the respondent is a sex offender requiring civil management, which is distinguishable. This court recognizes that pursuant to Mental Hygiene Law §10.06(k)(I), the Commissioner of Mental Health has statutory discretion to choose the facility in which the respondent will be housed pending the trial of the matter. Moreover, contrary to respondent's contention, the Attorney General's office did not place venue in Bronx County as it was by way of a motion filed by the respondent that venue was transferred to Bronx County. However, petitioner has failed to provide a compelling reason why the respondent should be located in St. Lawrence County pending the trial of this matter.

Respondent annexed directions from the Mapquest internet site to his reply papers indicating that St. Lawrence Psychiatric Center is approximately 393.98 miles from the Bronx County courthouse and the estimated driving time is 6 hours and 33 minutes. Respondent's counsel's office is in Bronx County and it is evident that driving a distance of more than six hours to prepare for trial is onerous and unnecessary since there is admittedly a facility in New York City with space to house the respondent pending his trial. Certainly it was not the intent of the legislature in giving the Commissioner of Mental Health the discretion to choose the facility where the respondent will be housed pending trial, that a respondent and his attorney would be four hundred miles away from each other during trial preparation. The probable cause hearing took place in Bronx County and the trial of this matter will also take place in Bronx County. Therefore, respondent should be placed in a facility in close proximity to Bronx County.

Respondent is not currently confined to a secure facility to receive care and treatment. That confinement will occur only if the jury finds that respondent is a dangerous sex offender requiring confinement. Therefore, Mr. Miraglia's contention that Manhattan Psychiatric Center is not the appropriate facility for the respondent is without merit. He admits that Manhattan Psychiatric Center is currently designated a secure treatment facility and whether or not it has a perimeter fence to prevent patients from leaving the facility is not the issue. The fact is, it is a secure treatment facility with available space to accommodate the respondent for the next three weeks in order for him to adequately prepare for trial with his attorney.

Absent a compelling reason why the respondent should remain in St. Lawrence County for the next three weeks pending his trial, this court orders that the respondent be transferred from St. Lawrence Psychiatric Center to Manhattan Psychiatric Center where he will remain until his trial is concluded.

This constitutes the decision of this court.

Settle order.

Dated October 10, 2007__________________________