IN RE: STATE of New York

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IN RE: STATE of New York, Respondent, v. ROBERT C., Appellant.

Decided: January 16, 2014

Before: LAHTINEN, J.P., STEIN, McCARTHY and GARRY, JJ. Allen & Desnoyers, LLP, Albany (George J. Hoffman Jr. of counsel), for appellant. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), for respondent.

Appeal from an order of the Supreme Court (McNamara, J.), entered March 1, 2012 in Albany County, which granted petitioner's application, in a proceeding pursuant to Mental Hygiene Law article 10, to find respondent to be a dangerous sex offender and confined him to a secure treatment facility.

In 1989, respondent was convicted upon his plea of guilty of rape in the first degree and was sentenced to 5 to 15 years in prison. A few months after being released from prison, he was convicted upon his plea to the charge of obstructing governmental administration in the second degree and was sentenced to six months in the Albany County Correctional Facility. The day after he was conditionally released in 2004, he tried to entice a minor into an alley to engage in oral or anal sexual conduct. For those actions, respondent pleaded guilty to attempted criminal sexual act in the second degree and received a prison sentence of 2 to 4 years.

On February 6, 2008, shortly before respondent was scheduled to be released upon the expiration of the maximum date of his sentence, petitioner commenced this Mental Hygiene Law article 10 proceeding seeking to confine respondent in a secure treatment facility. Although the order to show cause required service upon respondent and his assigned counsel by February 7, 2008, service was only effected upon counsel by that date. Respondent was not served until February 11, 2008. Nevertheless, Supreme Court (Hall Jr., J.) denied respondent's motion to dismiss the petition for lack of personal jurisdiction and, after a hearing, held that probable cause existed to believe that he was a dangerous sex offender requiring confinement. The court also granted respondent's motion to change venue. At a pretrial conference before Supreme Court (Egan Jr., J.), which respondent participated in by video due to his refusal to be transported, he waived his right to a jury trial on the issue of whether he suffered from a mental abnormality and consented to a finding that he had a mental abnormality. Supreme Court (O'Connor, J.) denied respondent's motion to withdraw his consent to the finding of mental abnormality and his waiver of the right to a jury trial. After the dispositional phase of trial, Supreme Court (McNamara, J.) issued an order of confinement. Respondent appeals.

Supreme Court (Hall Jr., J.) did not err in denying respondent's motion to dismiss the petition for lack of personal jurisdiction. The court noted that counsel was timely served, and the petition was sent to the Department of Corrections and Community Supervision—which had custody of respondent at the time—for service before the deadline noted in the order to show cause, but respondent was not served until four days after that deadline. A petition must ordinarily be dismissed for lack of personal jurisdiction if the petitioner does not comply with the service directives in an order to show cause (see Matter of Sorli Furchak, 51 N.Y.2d 713, 714 [1980]; Matter of Mathie v. Dennison, 39 AD3d 1059, 1060 [2007] ). Here, the court acknowledged that petitioner did not comply with the order to show cause in that respondent was not served until four days after the date required by that order. Despite the defect in service, the court denied the motion to dismiss. Although the court did not fully articulate the legal basis for that determination, the court did explain some of the factors it considered. Some of those factors were that counsel was timely served, the order to show cause only gave petitioner one day to effect service, petitioner forwarded the papers to respondent's custodian for service, respondent was apparently in a special housing unit in which he may not have been able to receive papers and he was served only four days after the deadline and prior to his prison release date. Additionally, respondent was apparently not prejudiced because counsel met with respondent prior to the probable cause hearing, and respondent had already received notice from petitioner that a proceeding was contemplated, along with the report that was an attachment to the petition and formed the basis for petitioner's conclusion that he needed to be confined.

Petitioner asserts that a court can extend the deadline for service, pursuant to CPLR 306–b, “upon good cause shown or in the interest of justice.” The language of that statute, however, only permits such an extension if service is not made within the time period provided in that section (see CPLR 306–b). Thus, it does not permit an extension of the time for service provided in an order to show cause (see Matter of Burke v. Bezio, 71 AD3d 1317, 1318 [2010]; Matter of Frederick v. Goord, 20 AD3d 652, 653 [2005], lv denied 5 NY3d 712 [2005]; but see Matter of Jordan v. City of New York, 38 AD3d 336, 339 [2007]; Matter of Stephens v. New York State Exec. Bd. of Parole Appeals Unit, 297 A.D.2d 408, 410 [2002] ).

An extension was available under another statute, however. CPLR 2004 provides that “a court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed” (CPLR 2004 [emphasis added] ). Although petitioner did not file a written motion for an extension of the time for service, petitioner did request that the original service be deemed sufficient. Treating that request as an application for an extension, and noting the factors relied upon by Supreme Court (Hall Jr., J.) as well as the meritorious nature of the petition, under CPLR 2004 it appears that good cause was shown for an extension of the time for service included in the order to show cause. Although it is unclear whether Supreme Court granted an extension on that basis, we grant such an extension and deem the petition timely served nunc pro tunc (see Clark v. Carmen A.C. Corp., 2 A.D.2d 640, 640 [1956] ).

We reject respondent's contention that Supreme Court lacked jurisdiction based on petitioner's failure to comply with the requirements for service of process on patients in mental health facilities (see 14 NYCRR 22.2). A prison does not fall within the definition of “facility” for such purposes (see 14 NYCRR 22.1[a]; see also Correction Law §§ 401, 402; 14 NYCRR 527.8[a][8] ). Thus, petitioner was not required to comply with the special service requirements for patients of facilities regulated by the Office of Mental Health.

Supreme Court (O'Connor, J.) did not err in denying respondent's motion to withdraw his consent to a finding of mental abnormality and waiver of his right to a jury trial. Such consent is permitted by statute (see Mental Hygiene Law § 10.08[f] ). A waiver of the right to a jury trial, in a proceeding that may affect the party's liberty interests, will be upheld if the court made an inquiry to establish that the waiving party understood the implications of such waiver and the waiver was knowingly, intelligently and voluntarily made (see People v. Smith, 6 NY3d 827, 828 [2006], cert denied 548 U.S. 905 [2006] ). Prior to the waiver and consent, respondent spent approximately an hour and a half speaking with two attorneys from the agency representing him. The discussion on the record between counsel, respondent and Supreme Court (Egan Jr., J.) indicates that his consent and waiver were knowing and intelligent. Respondent contends that he acted involuntarily, in that he was under duress from the court and counsel. Specifically, respondent contends that he chose to avoid a trial on the issue of mental abnormality because he feared for his personal safety at the Albany County Correctional Facility, and the court was requiring him to stay there during the trial and would not agree to allow him to be transported back and forth from the mental health facility each day. The court, which refused to conduct the trial in abstentia, felt that this housing arrangement was required by law (see Correction Law § 500–a [f] ).

Counsel testified at the motion hearing that they discussed with respondent and advised him of his options: appear for the jury trial and be required to stay at the Albany County Correctional Facility during the pendency of that trial; refuse to appear and be held indefinitely pending a trial, with no right to annual status reviews as would be available after a final determination in the proceeding; request that the court place its housing order in writing and seek an interlocutory appeal; or waive the right to a jury trial and consent to a finding of mental abnormality. Both attorneys testified that it was respondent who raised the possibility of waiver and consent, and counsel advised against it because they had an expert who would testify that respondent did not suffer from a mental abnormality.

At the time of the waiver, and later at the time of the hearing on the motion, respondent did not explain the reasons why he feared for his safety at the local jail. In fact, he testified that he had fabricated his 2004 crime in an effort to be housed at that jail because he knew that the staff there would take care of his special medical and nutritional needs. Respondent's generalized allegations that he was beaten in state prisons were not sufficient to show that he reasonably feared placement in the local jail for approximately one week during the trial. Respondent conferred with counsel, was aware of his options, and made a tactical decision to forgo the right to a trial on the issue of mental abnormality to avoid having to stay at the Albany County Correctional Facility. His displeasure with the housing arrangements during trial, which Supreme Court found were required by statute (see Correction Law § 500—a [f] ), was not enough to constitute duress—i.e., a wrongful threat that deprived him of his ability to exercise his own free will-so as to render his consent or waiver involuntary (see Desantis v. Ariens Co., 17 AD3d 311, 311 [2005]; Matter of Stearns v. Stearns, 11 AD3d 746, 748 [2004]; see also People v. Saunders, 19 AD3d 744, 745 [2005], lv denied 5 NY3d 832 [2005]; People v.. Miller, 217 A.D.2d 810, 811 [1995], lv denied 86 N.Y.2d 798 [1995] ). Accordingly, the court properly denied his motion to withdraw the consent and waiver.

ORDERED that the order is affirmed, without costs.

McCARTHY, J.

LAHTINEN, J.P., STEIN and GARRY, JJ., concur.

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