Opinion
203/2021
04-14-2021
In the Matter of the Application of Vilair FONVIL, Democratic party candidate for Mayor of the Village of Spring Valley, Petitioner/Candidate, v. Noramie F. JASMIN, Democratic party candidate for Mayor of the Village of Spring Valley, Respondent/Candidate, and Kristen Zebrowsky Stavisky and Patricia A. Giblin, as Commissioners of the Rockland County Board of Elections, Respondent-Commissioners. Pursuant to New York State Election Law Article 16-102. Noramie F. Jasmin, Petitioner, Candidate-Aggrieved v. Vilair Fonvil, Respondent-Candidate and Rockland County Board of Elections and Kristen Zebrowski Stavisky and Patricia A. Giblin, as Commissioners of the Rockland County Board of Elections, Respondents.
Vilair Fonvil, pro se. Ali Najmi, Esq., 32 Broadway, Suite 1310, NY, NY 10004, Counsel for Noramie Jasmin.
Vilair Fonvil, pro se.
Ali Najmi, Esq., 32 Broadway, Suite 1310, NY, NY 10004, Counsel for Noramie Jasmin.
Paul I. Marx, J. Papers were read and considered in these two special proceedings brought under Election Law § 16-102 by (1) Vilair Fonvil ("Fonvil") seeking an order (a) declaring Respondent Candidate Noramie F. Jasmin ("Jasmin") ineligible to hold elected office in the State of New York pursuant to New York State Public Officers Law § 3(1-a)(i) ; (b) declaring Jasmin to be ineligible to be designated for such office pursuant to Election Law § 6-122(2), (c) declaring that Jasmin does not have the right to full suffrage while subject to and serving a three (3) year post incarceration Supervised Release sentence under the auspices of the United States Probation Department, (d) declaring "defective, null and void as legally insufficient" the designating petitions filed by or on behalf of Jasmin on March 23, 2021 by which she seeks to be a candidate for the position of Mayor of the Village of Spring Valley, New York in the June 22, 2021 primary election and the November 2, 2021 General Election, (e) enjoining, restraining and prohibiting the respondent-commissioners of the Board of Elections from printing and placing Jasmin's name on the ballots of the Democratic Party to be used in the June 22, 2021 Primary Election and November 2, 2021 General Election for the public office of Mayor of the Village of Spring Valley (Proceeding #1), and (2) by Jasmin seeking an order (a) "declaring valid, proper, sufficient and legally effective [,] the Designating Petition" filed by Jasmin as a candidate for the public office of Mayor of the Village of Spring Valley, (b) directing, requiring and commanding the Rockland County Board of Elections to print and/or place Jasmin's name as candidate for Mayor on the official ballots to be used in the June 22, 2021 Democratic Primary Election, (c) enjoining and restraining the Rockland County Board of Elections from printing, issuing or distributing for use during the June 22, 2021 Democratic Primary Election any and all official ballots used on which Jasmin's name does not appear as a candidate for Mayor, (d) declaring insufficient, defective, invalid, null and void the designating petition filed with the Rockland County Board of Elections purporting to designate Fonvil as candidate for Mayor in the Democratic Primary to be held on June 22, 2021, (e) directing, requiring and commanding the Rockland County Board of Elections not to place and/or print Fonvil's name as a candidate in the June 22, 2021 Primary Election for Mayor of the Village of Spring Valley, and (f) declaring the designating petition filed by Fonvil to be a legal nullity and reversing any contrary determination of the Board of Elections which may have been made (Proceeding #2):
Jasmin's counsel, Ali Najmi, Esq. notified the Court via email dated April 14, 2021 that the portions of Jasmin's Petition (a) through (c) were withdrawn. Consequently, Jasmin no longer seeks validation of her designating petition.
Fonvil and Jasmin both seek "such other and further relief as to the Court may seem just and proper".
Fonvil v Jasmin: Proceeding #1 :
Order to Show Cause/Amended Order to Show Cause/Verified Petition of Vilair Fonvil/Affidavit of Vilair Fonvil/Exhibits A-H 1-4
Verified Answer with Counterclaim of Noramie F. Jasmin 5
Supplemental Brief 6
Second Supplemental Brief/Exhibits A-D 7
Jasmin v Fonvil: Proceeding #2 :
Order to Show Cause/Verified Petition of Noramie F. Jasmin/Emergency Affirmation of Ali Najmi, Esq. NYSCEF Docs 1-6
On the return date, Mr. Najmi, Jasmin's attorney, requested that the Court accept a certificate of disposition of Fonvil's conviction. This certificate shall be deemed to be part of the record of these proceedings, notwithstanding Fonvil's admission that he was, in fact, convicted of the charges stated.
Supplemental Brief by Najmi, Esq. 7
In addition to the papers submitted, the Court held a hearing on the April 7, 2021 return date of the Petitions. Upon inquiry by the Court, Fonvil, who proceeded pro se, agreed that his Petition could be viewed as his answer and opposition to Jasmin's Petition.
At the conclusion of the hearing, the Court requested further submissions from the parties on the following questions: (1) the effect of the stay of execution of the judgment of conviction which Fonvil obtained from the Appellate Division, Second Department pending appeal with respect to the issue of his eligibility to hold office under Public Officers Law § 3(1-a)(i) and (2) whether Jasmin's post incarceration Supervised Release precluded her from maintaining the right to vote under Election Law § 5-106(3). The parties and the Commissioners of the Rockland County Board of Elections were directed to submit simultaneous briefs by close of business on April 13, 2021.
Pursuant to Fonvil's request, the deadline for all parties was extended to noon on Wednesday, April 14, 2021.
On the Court's own motion, these two proceedings are joined for disposition and determination.
Background
This consolidated proceeding presents novel and interesting questions concerning the eligibility of Fonvil and Jasmin to be candidates for the public office of Mayor of the Village of Spring Valley. The essential facts are not in dispute. Each party applies the law differently to those facts to support his/her challenge to the opposing party's petition. In addition to her challenge to Fonvil's eligibility to serve, Jasmin initially sought to validate her own designating petition. Fonvil and Jasmin were formerly elected officials in the Village of Spring Valley. Fonvil was a Village Trustee. Jasmin was the Mayor. Each seeks to return to public office and has filed a designating petition to be placed on the ballot to run for Mayor in the June 22, 2021 primary election for the Democratic nomination for that office. The winner of the primary would then receive the Democratic Party line on the ballots distributed in the November 2, 2021 general election. Both Fonvil and Jasmin were convicted of crimes committed during their term in public office.
Fonvil was convicted of violating Penal Law ("PL") § 496.04 (Corrupting the Government in the 2nd Degree, a Class C Felony), PL § 496.03 (Corrupting the Government in the 3rd Degree, a Class D Felony), PL § 155.35 (Grand Larceny in the 3rd Degree, a Class D Felony), PL § 470.05(1) (Felony Money Laundering in the 4th Degree, a Class E Felony) and PL § 200.25 (Official Misconduct in the 2nd Degree, a Class E Felony) in November 2017 following a non jury trial in Rockland County Court. In September 2018, County Court Judge Kevin Russo sentenced Fonvil to a one year term of imprisonment, followed by a three year term of probation.
Fonvil appealed his conviction and moved pursuant to Criminal Procedure Law § 460.50 to stay execution of the judgment and for related relief. In March 2019, the Appellate Division, Second Department granted Fonvil's motion, stayed the execution of the judgment and permitted his release, on certain conditions, pending appeal. The Appellate Division granted two extensions to the stay application and Fonvil remains free pending a decision on his appeal. In each instance, the stay orders provide "the motion is granted, execution of the judgment is stayed". See People v. Fonvil, 2019 N.Y. Slip Op. 65753(U), People v. Fonvil, 2019 N.Y. Slip Op. 76214(U) and People v. Fonvil , 2020 N.Y. Slip Op. 68255(U).
Fonvil's appeal was argued on January 14, 2021. A decision on the appeal has not been rendered.
Jasmin was found guilty in the United States District Court, Southern District of New York by the Hon. Colleen McMahon (USDC Judge), on August 7, 2015 of violating 18 USC § 1341 (Mail Fraud) and 18 USC § 1951 (Hobbs Act Extortion). Subsequently, Jasmin was sentenced to a term of four (4) years of incarceration on each count followed by three years of post-incarceration Supervised Release, sentences to run concurrently. Various financial penalties were also imposed. Jasmin's appeal of the conviction was unsuccessful. She has served the full period of incarceration to which she was sentenced and is currently serving her term of Supervised Release, which ends on July 26, 2022.
Case number 13 CR 297-05 (CM).
In proceeding #1, Fonvil, contending that he is an aggrieved candidate, seeks an order disqualifying Jasmin as a Mayoral candidate in the primary election. Fonvil submits that Jasmin's federal felony convictions render her ineligible to run for office under Public Officers Law § 3(1-a)(i). Without explicitly acknowledging that Public Officers Law § 3(1-a)(i) does not address federal convictions, Fonvil asserts that a conviction for violating the Hobbs Act is the equivalent of a conviction for bribery under Penal Law § 200, et seq. In addition, Fonvil contends that, even if the Court were to hold that Jasmin's federal convictions do not operate to disqualify her under the Public Officers Law, she remains ineligible to hold public office because she does not have the right to vote under Election Law § 5-106 and, therefore is ineligible to hold office under Election Law § 6-122.
In proceeding #2, Jasmin argues that Fonvil is disqualified from holding elected office under the same section of the Public Officers Law upon which he relies, Public Officers Law § 3(1-a)(i). In a rather ironic twist, Jasmin contends that it is Fonvil, not she, who is clearly disqualified from holding civil office pursuant to Public Officers Law § 3(1-a)(i) based on his state felony convictions. Jasmin asserts that the statute specifically refers to the disqualification of persons convicted of violations under the articles of the Penal Law of which Fonvil was convicted and sentenced.
Initially, Jasmin's Petition also sought to validate her own designating petition. Jasmin withdrew that portion of her Petition after the deadline passed for objections to be filed with the Board of Elections and the Board had not invalidated her designating petition.
In opposition, Fonvil contends that because he obtained a stay of execution of the judgment of conviction, Public Officers Law § 3(1-a)(i) is inapplicable. Essentially, he argues that his conviction is of no effect until it is affirmed by the appellate court.
In the first proceeding, the Court must determine whether Jasmin's federal felony conviction disqualifies her from seeking to be elected Mayor. In addition, the Court must determine if Jasmin's ongoing Post Release Supervision operates to deprive her of the right of full suffrage such that she is ineligible to run for office under Election Law § 5-106(3), and Election Law § 6-122.
In the second proceeding, the Court must determine whether Fonvil's state felony conviction disqualifies him from seeking to be elected Mayor. If so, the Court must determine whether the Appellate Division's stay of execution of Fonvil's judgment of conviction pending his appeal negates his conviction such that he may legally become a candidate for Mayor.
Applicable Law
Determination of these matters requires analysis and application of various statutes including the sections of the Election Law which (a) permits challenges to nominating petitions to be made by certain individuals, (b) determines who is eligible to be designated or nominated to hold public office, and (c) limits the ability of individuals who have been convicted of felonies to vote. In addition, the issues presented require evaluation of the extent to which Public Officers Law 3(1-a)(i) applies to felonies which are not specifically identified in the statute. The relevant statutes are:
Election Law § 16-102, which identifies the individuals who are qualified to contest a designating or nominating petition. Section 16-102 (1) states:
The nomination or designation of any candidate for any public office or party position ... may be contested in a proceeding instituted in the supreme court by any aggrieved candidate , or by the chairman of any party committee or by a person who shall have filed objections, as provided in this chapter, (emphasis added)
Election Law § 6-122, which prohibits the nomination of a person who is ineligible to hold office. The law provides:
A person shall not be designated or nominated for a public office or party position who (2) is ineligible to be elected to such office or position
Election Law § 5-106(3), which sets forth certain restrictions on who can vote. The law provides:
No person who has been convicted in a federal court, of a felony, or a crime or offense which would constitute a felony under the laws of this state, shall have
the right to register for or vote at any election unless he shall have been pardoned or restored to the rights of citizenship by the president of the United States, or his maximum sentence of imprisonment has expired, or he has been
discharged from parole.
Finally, Public Officers Law § 3(1-a)(i), which prohibits individuals who have been convicted of certain crimes from holding public office. The law provides:
No person shall be capable of holding a civil office who shall stand convicted of a felony defined in article two hundred or four hundred ninety-six or section 195.20 of the penal law.
Discussion
Fonvil's Petition to invalidate Jasmin's designating petition based on her alleged inability to hold the office of Mayor due to her federal felony convictions and her alleged inability to vote was filed prior to Jasmin's Petition to invalidate Fonvil's designating petition. However, Jasmin challenges Fonvil's Petition in the first instance based upon his qualification to be an aggrieved candidate under Election Law § 16-102. Essentially, Jasmin asserts that Public Officers Law § 3(1-a)(i) operates to disqualify Fonvil as a candidate for the office of Mayor because of his convictions. She concludes that since he cannot be a candidate, he cannot be an aggrieved candidate and does not have standing to bring his Petition. Because Jasmin's challenge to Fonvil's standing is a threshold issue, the Court will consider that issue first before addressing the questions raised in Fonvil's Petition.
Pursuant to the letter directive of the Hon. William F Mastro, Acting Presiding Justice of the Appellate Division, Second Department, dated March 12, 2021 even where, as here, the Court finds there to be a procedural impediment to a challenge, the Court is required, to the extent possible, to reach the merits of all claims raised. The Court, therefore, in this case, has decided the additional challenges raised by Fonvil.
There can be no dispute that Fonvil stands before the Court having been convicted of violating sections of the Penal Law that disqualify him from holding office under the Public Officers Law. Public Officers Law § 3(1-a)(i) clearly and unequivocally disqualifies an individual from holding public office following any conviction of penal law sections "two hundred or four hundred ninety-six". To reiterate, that section states that "[n]o person shall be capable of holding a civil office who shall stand convicted of a felony defined in article two hundred or four hundred ninety-six or section 195.20 of the penal law."
Fonvil was convicted of two separate offenses under Penal Law article four hundred, having been convicted of violating PL § 496.04 (Corrupting the Government in the 2nd Degree, a Class C Felony) and PL § 496.03 (Corrupting the Government in the 3rd Degree, a Class D Felony). In addition, Fonvil was convicted of an offense under section two hundred of the Penal Law, having been convicted of violating PL § 200.25 (Official Misconduct in the 2nd Degree, a Class E Felony). As such, Fonvil is clearly and unequivocally ineligible, under Public Officers Law § 3(1-a)(i), to hold elected office and is also ineligible to be a candidate for elected office under Election Law § 6-122. Logically, since Fonvil is ineligible to hold the office of Mayor or be a candidate for that office, a fortiori he cannot be an aggrieved candidate.
Fonvil's argument that the Appellate Division stay of the judgment of conviction operates to preclude the application of the Public Officers Law is unavailing. The stay of execution of judgment of conviction obtained by Fonvil pursuant to Criminal Procedure Law ("CPL") § 460.50 does not operate to stay his convictions. A "judgment of conviction" is not, itself, a conviction, but rather "the ‘sentence’ of the court as found in its minutes." People v. Cunningham , 182 Misc. 2d 790, 793, 702 N.Y.S.2d 523 [County Ct., Dutchess County 1999] citing People v. Mellon , 261 A.D. 400, 401, 25 N.Y.S.2d 650 [1st Dept. 1941].
In People v. Cunningham , the Dutchess County Court held that "[a] ‘conviction’ is complete upon an adjudication of guilt or the entry of a plea of guilty ( People v. Griffin, 171 Misc. 2d 145, 149 [Sup. Ct., N.Y. County 1996" [sic], citing Matter of Gunning v. Codd, 49 N.Y.2d 495 [427 N.Y.S.2d 209, 403 N.E.2d 1208] [1980" [sic], and Matter of Swirsky, 103 A.D.2d 195, 479 N.Y.S.2d 225 [1st Dept. 1984") [sic], and cannot be stayed or suspended by operation of CPL 460.50 (1)." Cunningham , 182 Misc. 2d at 793, 702 N.Y.S.2d 523 ; See also CPL § 1.20(13).
This Court agrees with the holding in Cunningham . To be sure, the various orders from the Appellate Division which granted Fonvil's motion for a stay pending appeal only stayed "execution" of the judgment, i.e. the sentence imposed by Judge Russo. As such, despite his pending appeal, Fonvil stands before this Court convicted of violating Penal Law §§ 496 and 200. To hold otherwise would require this Court to construe the Appellate Division Orders to equate to a pre-appeal decision of vacatur. This would translate into a holding that when a party secures an order of release pending appeal, they have not actually been convicted. That is not and cannot be the law, for the conviction is presumptively valid until or unless it is overturned on appeal. Indeed, nothing in the Appellate Division Orders indicates that the appellate court intended to reverse the conviction in advance of briefs being filed or argument held in that court. At this time, Fonvil is not qualified to hold office pursuant to Public Officers Law § 3(1-a)(i). As such, Fonvil is not an aggrieved candidate under Election Law § 16-102(1) and he lacks standing to bring a petition to challenge Jasmin's candidacy for the office of Mayor. Accordingly, Fonvil's Petition is dismissed.
Nonetheless, as noted above, Supreme Court Justices have been directed by the Presiding Justice of the Appellate Division to determine all issues raised by a petition brought under Election Law § 16-102 even if a matter is disposed on other grounds, where feasible. Hence, since the issues presented can be determined as a matter of law, the Court turns to the arguments raised by Fonvil's Petition challenging Jasmin's candidacy.
Fonvil's Public Officers Law § 3(1-a)(i) Challenge to Jasmin's Eligibility Based on Her Federal Convictions
Fonvil challenges Jasmin's eligibility to run for and hold elected office because of her federal felony convictions. He contends that she is disqualified under Public Officers Law § 3(1-a)(i). This assertion is plainly incorrect.
The Public Officers Law specifies those crimes, conviction of which serve to disqualify a person from holding public office. Nowhere within the statute are federal crimes mentioned. The Public Officers Law provision speaks only to state law felony convictions under specified sections of the Penal Law. Fonvil asks the Court to construe Jasmin's federal conviction under the Hatch Act as equivalent to bribery under section two hundred of the Penal Law. The Court is constrained to apply the law as written. People v. Wager , 173 A.D.3d 1352, 103 N.Y.S.3d 627 [2nd Dept. 2019]. "[T]he clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. If the words chosen have a definite meaning, which involves no absurdity or contradiction, then there is no room for construction and courts have no right to add or take away from that meaning". 33 A.D.3d at 1353. Absent from the statutory provision in this case is any indication that the legislature intended to include crimes other than those specifically identified. Indeed, as Jasmin's attorney pointed out at the hearing on the return date, there is proposed legislation pending in the New York State legislature by which certain federal crimes which are similar to the state crimes identified in the Public Officers Law would be added to the list of disqualifying crimes. The proposed legislation is not, however, the current state of the law. Fonvil cannot rely on laws which are not yet enacted to disqualify Jasmin and this Court cannot read into the law federal crimes which are not mentioned in the statute.
Unlike Election Law § 5-106(3) which specifically applies to "a crime or offense which would constitute a felony under the laws of this state," Public Officers Law § 3(1-a)(i) does not include such language. As such, it must be read more restrictively.
Accordingly, Fonvil's argument that Public Officers Law § 3(1-a)(i) operates to render Jasmin ineligible to serve as Mayor is rejected.
Fonvil's Challenge to Jasmin's Right to Vote as a Disqualifying Factor
Fonvil next argues that Jasmin does not have the right of full suffrage because of her federal convictions. Fonvil does not clearly argue in his papers that Jasmin's disqualification as a voter renders her ineligible to hold the office of Mayor. At the hearing on his Petition, however, he stated that it was his contention that Jasmin is ineligible to serve as Mayor on the additional ground that she is not qualified to vote by virtue of her federal convictions, pursuant to Election Law § 5-106(3). Election Law § 5-106(3) states:
No person who has been convicted in a federal court, of a felony, or a crime or offense which would constitute a felony under the laws of this state, shall have the right to register for or vote at any election unless he shall have been pardoned or restored to the rights of citizenship by the president of the United States, or his maximum sentence of imprisonment has expired, or he has been discharged from parole.
Fonvil argues that Jasmin does not have the right to register to vote or to vote until her three-year post-incarceration period of Supervised Release ends on July 26, 2022. Consequently, he contends, in effect, that Jasmin's designating petition is invalid because she is not properly registered to vote and she therefore cannot hold public office. The argument made by Fonvil was addressed in Engel v. Board of Elections of State of NY , 143 A.D.2d 291, 531 N.Y.S.2d 931 [3rd Dept.], appeal denied 72 N.Y.2d 805, 532 N.Y.S.2d 846, 529 N.E.2d 176 [1988], and rejected. The petitioners in Engel argued that the candidate's designating petition was not valid because he "was not properly registered and enrolled in the Democratic Party due to his felony conviction". The petitioners’ argument in that case was also premised on Election Law § 5-106(3). The Appellate Division held that the candidate's designating petition was valid, despite his federal conviction, because his voter registration had not been canceled by the Board of Elections. Citing Election Law § 5-402 (2), which provides that a voter's registration cannot be canceled "until the voter is notified by the Board [of Elections] of its intention to cancel and given an opportunity to be heard", the court held that cancellation is not automatic. Id. at 292, 531 N.Y.S.2d 931. The court held that the procedure outlined in Election Law § 5-402 (2) must be followed to effectuate cancellation. "[S]ince th[e] procedure had not been followed at the time the petition was filed, no cancellation of [the candidate's] registration occurred and thus the designating petition was not invalid for that reason." Id. (see, Nesci v. Canary , 112 A.D.2d 1056, 1057, 493 N.Y.S.2d 41 [2nd Dept. 1985], lv denied 65 N.Y.2d 607, 494 N.Y.S.2d 1031, 484 N.E.2d 139 ; 49 NY Jur 2d, Elections, § 105, at 533).
In Nesci , the court rejected the argument that the candidate's petition was invalid because his voter registration was effectively canceled when he changed his residence.
Similarly, Jasmin's voter registration was not cancelled by the Rockland County Board of Elections and remains in effect. Fonvil acknowledged that Jasmin has not been removed from the voter rolls. Fonvil Petition at ¶ 42. As the courts held in Nesci and Engel , cancellation does not automatically occur, even where a federal conviction would serve as the basis for cancellation as was at issue in Engel . As the Appellate Division stated in Engel , "disenfranchisement is a drastic punishment which should not be imposed without affording a voter his right to due process." Engel, supra at 292, 531 N.Y.S.2d 931.
This Court cannot deem cancellation to have occurred upon Jasmin's federal conviction. Jasmin maintains the right of suffrage until the Board of Elections gives her notice of its intent to cancel her voter registration and gives her an opportunity to be heard. That has not occurred. Accordingly, Jasmin's designating petition is not invalid for the reason that she is not properly registered to vote. Finally, Fonvil argues that Jasmin is disqualified from holding public office because she continues on post release supervision. As relevant here, he asserts that under Election Law § 5-106(3), Jasmin is ineligible to vote because she has not been discharged from parole. This contention is without merit.
Simply put, parole is not the same as post release supervision. Opinion of Counsel for NY State Board of Elections dated March 22, 1996. Parole is an administrative determination made by the parole board for a person who has been sentenced to an indeterminate period of incarceration. Post release supervision is part of a sentence, imposed by the sentencing court, which follows the completion of the maximum term of confinement. Inasmuch as Election Law § 5-106(3) does not apply to post release supervision by its very language, Fonvil's challenge to Jasmin's ability to vote is misplaced.
The Rockland County Board of Elections supplied the Court with this authority at the hearing. The Court deems the Opinion Letter to be persuasive in the absence of any other applicable authority on this issue. The Court does not find the Congressional Research Service Report cited by Jasmin's counsel in his Supplemental Brief to be sufficiently authoritative; however, it substantiates the difference between parole and supervised release.
Additional Arguments Made by Fonvil in Supplemental Briefs
In addition to the grounds which Fonvil raised in his Petition, he raised two new grounds in his Supplemental Briefs upon which he contends that Jasmin is not eligible to run for or serve as Mayor. First, he asserts that Jasmin is disqualified from running for Mayor because she has not paid the restitution required under her post conviction sentence. Second, he asserts that under 18 USC § 3583(d)(5) [sic], Jasmin is precluded from "engaging in a specific occupation, business or profession bearing a reasonably direct relationship to the conduct constituting the offense." Neither of these grounds is properly before the Court and both lack merit.
Fonvil submitted two separate Supplemental Briefs, one on the issue of Jasmin's Supervised Release and a second one on the issue of the effect of the stay of execution of his conviction.
The Court rejects Fonvil's effort to expand the basis for his Petition to include these new grounds. The law is clear that a party who files a challenging petition under Election Law § 16-102 is limited to those grounds which are included in the petition. Messina v. Albany County Board of Elections , 66 A.D.3d 1111, 887 N.Y.S.2d 688 [3rd Dept. 2009]. Moreover, because the Court ordered simultaneous submission of supplemental briefing by the parties, Jasmin's counsel has not had the opportunity to respond to Fonvil's new arguments. Thus, these new grounds are not properly before the Court and are rejected.
Even if the Court were to consider these grounds on their claimed merits, the result is the same. As a first additional ground, Fonvil asserts, without any evidentiary support, that Jasmin has not complied with her post conviction sentencing order which required her to pay restitution. Thus, he contends, Jasmin is barred from holding civil office. This assertion is made without citation or reference to any legal authority whatsoever. To the extent that this argument is an expansion of his claim that Jasmin's continuing Supervised Release bars her from serving under Election Law § 5-106(3), it is rejected on the same grounds set forth above. Election Law § 5-106(3) does not include as an act that disqualifies a person from holding office, the failure to pay restitution.
Next, Fonvil adds that Jasmin is barred from holding office under 18 USC § 3583(d)(5) [sic], which he contends precludes her from working in a specific capacity. The Court notes that section 18 USC § 3583(d)(5) does not contain the language Fonvil attributes to it. The Court assumes that Fonvil meant to refer to a subsection of 18 USC § 3563, which addresses "Conditions of Probation." Subsection (d)(5) of 18 USC § 3563 is a discretionary condition which a Court is permitted to impose as a "condition of probation". Jasmin is not on probation and no such condition was imposed by Judge McMahon. Hence, neither section of 18 USC is applicable, therefore, neither section can serve as a predicate for Jasmin's disqualification.
Summary of Determinations
For the reasons set forth herein, in the first proceeding, the Court holds that because Fonvil is not eligible to be a candidate for the office of Mayor, he is not and cannot be an aggrieved candidate entitled to challenge Jasmin's petition under Election Law § 16-102. As such, Fonvil lacks standing to contest Jasmin's eligibility to run for elected office. The Court further holds that, even if Fonvil was not disqualified from running for office and could lawfully challenge Jasmin's eligibility, Jasmin's federal felony convictions do not disqualify her from running for office under Public Officers Law § 3(1-a)(i).
Further, the Court rejects Fonvil's contention that Jasmin may not hold civil office because she is not qualified to vote pursuant to Election Law § 5-106(3). The Court holds that Jasmin's as yet incomplete term of Supervised Release does not operate to prevent her from voting because Supervised Release does not equate to parole within the meaning of Election Law § 5-106(3). In addition, the Court holds that Jasmin remains eligible to vote because her voter registration was not purged by the Board of Elections. Consequently, Fonvil's Petition to disqualify Jasmin from running for Mayor is denied in all respects and is hereby dismissed.
In proceeding number 2, the Court holds that Fonvil's convictions of violating PL §§ 496.04 and 496.03 and PL § 200.25 disqualify him from holding any elected public office, including that of Mayor of the Village of Spring Valley. The Court further holds that the stay of execution of judgment obtained by Fonvil on his motion pursuant to CPL § 460.50 from the Appellate Division does not operate to negate his convictions under Penal Law § 496.04 and 496.03, so as to enable him to run for office while his appeal is pending. Thus, the Court holds that under Public Officer's Law § 3(1-a)(i), Fonvil is ineligible to serve as, or run for, Mayor of the Village of Spring Valley, NY. Fonvil's ineligibility to hold the office of Mayor renders him ineligible to hold the status of aggrieved candidate. Consequently, he does not have standing to challenge Jasmin's designating petition and his own designating petition is determined invalid.
Disposition
It is hereby ORDERED that Fonvil's challenge to Jasmin's nominating petition under Election Law § 16-102 (proceeding #1) is denied and is hereby dismissed. It is further
ORDERED that Jasmin's challenge to Fonvil's nominating petition under Election Law § 16-102 is granted. Fonvil is disqualified from his candidacy for Mayor and the Board of Elections is hereby directed to omit Fonvil as a candidate for the office of Mayor of the Village of Spring Valley on the ballots which will be printed, distributed and utilized in the June 22, 2021 primary election. It is further
ORDERED that Jasmin's proceeding to validate her nominating petition is marked withdrawn.
The foregoing constitutes the Decision and Order of the Court.