In the Matter of the Application of The State of New York, Petitioner,
Kenneth Couch, an Inmate in the Custody of the New York State Department of Correction Services, Respondent. For Civil Management Pursuant to Mental Hygiene Law Article 10.
T. SCHNEIDERMAN Attorney General of the State of New York
By:Laura M. Barnhill, Esq. Assistant Attorney General NYS
Office of the Attorney General
HYGIENE LEGAL SERVICE Third Judicial Department Sheila E.
Shea, Director By:Charles H. Metcalfe, Esq.
Phillip R. Rumsey, J.
has been represented in all phases of this Mental Hygiene
article 10 proceeding by Mental Hygiene Legal Services (MHLS)
(see Mental Hygiene Law § 10.06[c]), at all
times since its transfer to Cortland County, specifically by
attorney Charles Metcalfe. In November 2015, respondent
requested that MHLS, and Charles Metcalfe in particular, be
discharged and new counsel be appointed. Respondent was
permitted to appear before the court in person to present his
objections to continuing representation by MHLS.
Respondent's motion for substitution of counsel was
denied by decision and order dated December 15, 2015, on the
basis that MHLS and Metcalfe are able to provide meaningful
and effective continuing representation to respondent.
court later received communication from Metcalfe requesting
an adjournment of the dispositional hearing to enable him to
file a motion on respondent's behalf. Metcalfe further
advised the court that he met with respondent to explore the
issues that respondent desired be raised by motion.
Ultimately, Metcalfe filed a motion on respondent's
behalf to preclude expert testimony in the dispositional
hearing regarding any diagnosis of Other Specified Paraphilic
Disorder - Non-Consent (OPSD [non-consent]), or other
rape-based paraphilias by any name or, in the alternative,
requesting that the court conduct a Frye hearing. By
decision and order dated September 27, 2016, the court
granted respondent's motion to the extent of precluding
petitioner from offering any expert testimony in the
dispositional hearing regarding any diagnosis of Other
Specified Paraphilic Disorder - Non-Consent (OPSD
[non-consent]), or other rape-based paraphilias.
by letter dated October 2, 2016, respondent advised the court
that he had requested that MHLS move for relief in addition
to that requested in the motion that had been submitted,
including preclusion of evidence on Nonconsent with Sadistic
Characteristics or reliance upon the Severe Sexual Sadism
Scale, PCL-R-20 or SVR-20. He notified the court of his
intent to file a pro se motion to raise the
additional issues. By letter dated November 7, 2016, Metcalfe
advised the court that MHLS will not be filing any additional
motions. Based on the fact that MHLS did not, and does not
intend to, make a motion on the basis of the additional
issues identified by respondent, the court has concluded that
MHLS found them to lack legal merit.
criminal defendant has no right to hybrid representation; a
defendant represented by counsel cannot, of right, make
motions (see People v Rodriguez, 95 N.Y.2d 497');">95 N.Y.2d 497
).  Rather, "[b]y accepting counseled
representation, a defendant assigns control of much of the
case to the lawyer, who, by reason of training and
experience, is entrusted with sifting out weak arguments,
charting strategy and making day-to-day decisions over the
course of the proceedings" (id. at 501-502
[citations omitted]).The decision of whether to allow a
defendant to file a pro se motion implicates the
court's discretion to ensure orderly administration of
the proceedings (id.).
has no duty to entertain motions that a defendant, or
respondent, seeks to submit on a pro se basis where,
as here, counsel was aware of the motions and chose not to
adopt them (id. at 502). Moreover, the court finds,
in the exercise of its discretion to ensure the orderly
administration of this proceeding, that allowing respondent
to file pro se motions that his experienced and
capable counsel determined lacked sufficient legal merit to
present to the court would unduly further delay conclusion of
this proceeding (id.; see also People v
Martin, 125 A.D.3d 1054');">125 A.D.3d 1054 ). In that regard, it bears
noting that the jury trial was completed in July 2015 and the
dispositional hearing originally scheduled to be conducted on
November 25, 2015 was adjourned, in response to a letter
dated November 10, 2015, to permit consideration of
respondent's motion for substitution of counsel. The
dispositional hearing rescheduled to commence on March 22,
2016 was adjourned at the last minute when respondent refused
to be transported to court and his counsel requested an
adjournment on his behalf. In letters dated in October 2016,
respondent requested that his dispositional hearing not be
rescheduled before he files an additional motion.
on the foregoing, respondent is precluded from filing pro
se motions and the dispositional hearing will proceed as
scheduled on January 11, 2017. Respondent's
counsel is directed to advise respondent that all further
communications with, or submissions to, the court must be
made through counsel.
decision constitutes the order of the court. The transmittal
of copies of this decision and order by the court shall not
constitute notice of entry (see CPLR 5513).
following items were considered in rendering this Decision
from Charles H. Metcalfe to the court dated April 7, 2016.
from Charles H. Metcalfe to the ...