Opinion
7436-17
01-31-2019
In the Matter of the Application of Dino CAROSELLI, Petitioner, v. Steven A. CLAUDIO, Deputy Commissioner New York State Department of Correction and Community Supervision, Respondent.
Dino Caroselli, Self-Represented Petitioner Letitia James, Attorney General, Attorney for Respondent, (Brian W. Matula, of counsel) The Capitol, Albany, New York 12224-0341
Dino Caroselli, Self-Represented Petitioner
Letitia James, Attorney General, Attorney for Respondent, (Brian W. Matula, of counsel) The Capitol, Albany, New York 12224-0341
Richard M. Platkin, J.
Petitioner, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this CPLR article 78 proceeding seeking to compel respondent to accept his June 13, 2016 letter to Governor Andrew Cuomo requesting "a pardon upon innocence" (Petition, ¶ 1). Respondent opposes the application through an answer.
The Court previously denied respondent's two pre-answer motions to dismiss on May 4, 2018 and October 18, 2018, respectively.
BACKGROUND
After being convicted of five class C felonies, petitioner was sentenced in 1993 to a prison term of 35 years to life as a persistent violent felony offender (see Verified Petition ["Petition"], ¶ 6; Penal Law § 70.08 ). In 2003, while confined at Auburn Correctional Facility, petitioner was convicted of two class D felonies and sentenced as a persistent violent felony offender to consecutive terms of imprisonment of 15 years to life (see id. ). Thus, petitioner is serving a total aggregate sentence of 65 years to life on his 1993 and 2003 convictions (see id .).
Petitioner alleges that his sentences on the 1993 and 2003 convictions were enhanced on account of two prior convictions for violent felonies, and he claims to be innocent of the latter such conviction ("1985 conviction") (see id. , ¶¶ 6, 8-9, 17). Petitioner contends that if he were pardoned of the 1985 conviction by the Governor, his current sentences would be subject to mandatory reduction (see id ., ¶¶ 7, 17-18).
On June 13, 2016, petitioner wrote to the Governor seeking executive clemency, claiming innocence of the 1985 conviction (see Petition, Ex. 2). The letter stated that it was drafted and submitted pursuant to DOCCS Directive 6901, entitled "Information Concerning Executive Clemency" (id. , Ex. 1 [available at http://www.doccs.ny.gov/Directives/6901.pdf] ).
By letter dated March 31, 2017, respondent, a deputy commissioner with DOCCS, advised petitioner that he had been asked by the Governor and the Acting Commissioner of DOCCS to respond to his "request to be considered for executive clemency" (id. , Ex. 3). Respondent explained:
The Executive Clemency Bureau is "a unit within [DOCCS] that assists the Governor's Office with clemency applications" (https://www.ny.gov/services/apply-clemency; see also Directive 6901).
Pursuant to the ‘Guidelines for Review Of Executive Clemency Applications', as published by the Governor's Office ..., a review of your records reveals that you may expect to become eligible to apply for clemency in the form of commutation of sentence on November 10, 2024. You should by that time have satisfied a basic requirement that inmates first serve at least one-half of the court-imposed minimum sentence before seeking clemency (id. ).
Petitioner responded on April 28, 2017, stating that "since I am seeking a pardon upon innocence, and not clemenc[y] my application is ripe for review, pursuant to DOCCS Directive 6901" (id. , Ex. 4; see also id ., Ex. 5).
On September 8, 2017, respondent replied, in relevant part:
[P]ardons of this type are extraordinarily rare in ... New York since this form of executive clemency ... is only considered when there is overwhelming and convincing proof of innocence that was not available at the time of conviction. Even then, a pardon of this type is not available if an individual has available adequate administrative or legal remedies. In that you have not indicated or demonstrated any efforts of relief engagement through available administrative or legal remedies, your request for a pardon cannot be considered at this time (id. , Ex. 6).
Petitioner wrote again on September 28, 2017, stating that he had, in fact, filed a motion in 2014 to set aside the 1985 conviction, but the motion was denied on "technical grounds" (id. , Ex. 7). Petitioner further indicated that he had filed multiple appeals and post-conviction motions, all of which had been denied, and he did not have "any other administrative or legal remedies available" (id. ).
Respondent's final letter of October 2, 2017, stated, in pertinent part:
As we have explained in previous correspondence, pardons of this type are extremely rare ... since this form of executive clemency ... is only considered when there is overwhelming and convincing proof of innocence that was not available at the time of conviction. If you have exhausted all other available ... remedies you must then follow the executive clemency application guidelines as set forth by the Governor as the guidelines apply to commutation of sentence consideration. One such requirement is that the applicant must have served at least one-half of his minimum period of imprisonment. A review of your records reveal[s] that you may expect to satisfy this requirement on November 10, 2024 (id. , Ex. 8).
Petitioner then commenced this special proceeding, in the nature of mandamus, "to compel" respondent "to accept [p]etitioner's June 13, 2016 [sic] Letter to ... Governor Cuomo, seeking a ‘pardon’, pursuant to ... Directive 6901, as a letter seeking a pardon upon innocence, and not a letter seeking [c]lemency" (Petition, ¶ 1; see also id ., Wherefore clause). According to petitioner, there is nothing in the Governor's clemency application guidelines that requires an individual applying for a pardon based on actual innocence to have served at least one-half of his or her minimum period of imprisonment; this requirement applies only to requests for commutation of sentence (see id ., ¶¶ 1, 16-17).
DISCUSSION
Mandamus to compel is " ‘an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought’ " ( Matter of Curry v. New York State Educ. Dept. , 163 AD3d 1327, 1330 [3d Dept 2018], quoting Matter of Shaw v. King , 123 AD3d 1317, 1318-1319 [3d Dept 2014] ; see Klostermann v. Cuomo , 61 NY2d 525, 539 [1984] ).
New York Constitution, article IV, § 4 accords the Governor the "power to grant reprieves, commutations and pardons ... upon such conditions and with such restrictions and limitations, as he or she may think proper" (see also Executive Law § 15 ). The Governor's exercise of this discretionary power to grant executive clemency is not subject to judicial review " ‘unless illegal or impossible conditions are attached’ " (Matter of Boyd v. Pataki , 52 AD3d 1128, 1128-1129 [3d Dept 2008], quoting Vanilla v. Moran , 272 App Div 859, 859 [3d Dept 1947], affd 298 NY 796 [1949] ; see also Connecticut Bd. of Pardons v. Dumschat , 452 US 458, 464 [1981] ). Thus, a person convicted of a crime can have no clear right to executive clemency (see People ex rel. Sloane v. Lawes , 255 NY 112, 118 [1930] ["executive clemency, (is) of course ... applied for as a matter of grace, never as a matter of right"]; Sturnialo v. Carey , 90 Misc 2d 275, 277 [Sup Ct, Ulster County 1977] ).
Initially, while petitioner seeks an order compelling respondent to accept his June 13, 2016 letter, the record shows that respondent did accept the letter and act upon it at the Governor's direction (see Petition, Ex. 3 ["Governor Cuomo ... asked me to respond to your letter regarding your request to be considered for executive clemency"]; id ., Exs. 6-8; Answer, Exs. B-D; cf . Matter of Johnson v. Evans , 76 AD3d 1164, 1164 [3d Dept 2010], lv denied 16 NY3d 702 [2011] ). Thus, the Petition fails to state a cause of action insofar as petitioner seeks to compel respondent to accept his letter.
Petitioner's principal contention, however, is that respondent erroneously viewed his request for executive clemency in the form of a pardon based upon actual innocence as a request for the commutation of his current sentences. For the reasons that follow, the Court concludes that petitioner's argument is premised upon a fundamental misapprehension of the nature of an executive pardon and the effect of a pardon on his current sentences.
Specifically, petitioner's claim of innocence extends only to his 1985 conviction, which was "utilized to enhance his current term of 65 years imprisonment, when his normal lawful sentence could not exceed 10 to [20] years imprisonment if not sentenced as a persistent felon" (Petition, ¶ 17). However, "under the New York State Constitution a pardon based on actual innocence does not constitute a nullification of the conviction, and the conviction remains intact" ( People v. Cole , 1 Misc 3d 531, 538 [Sup Ct, Kings County 2003, Leventhal, J.] [collecting authorities]; see People ex rel. Jobissy v. Murphy , 244 App Div 834, 835 [3d Dept 1935] [pardon does "not obliterate the record of ... conviction or blot out the fact that (a defendant) had been convicted"], affd 268 NY 695 [1935], cert denied 298 US 661 [1936] ; see also Matter of Lyons v. Goldstein , 290 NY 19, 27 [1943] ; Roberts v. State of New York , 160 NY 217, 221 [1899] ).
As the Court of Appeals has explained, "[a] pardon proceeds not upon the theory of innocence, but implies guilt. If there was no guilt, theoretically at least, there would be no basis for pardon. It is granted not as a matter of right, but of grace" (Roberts , 160 NY at 221-222 ). If the judgment of conviction "was erroneous, the remedy was by appeal or by application to set it aside, and not by pardon" (id. at 222 ). "That question [is] for the judicial branch of the state government to determine, and not for the legislative or executive department" (id. ). In other words, separation of powers bars the Governor from "blot[ting] out a solemn record of the judicial branch of government" through the power of executive clemency (People v. Carlesi , 154 App Div 481, 486 [1st Dept 1913], affd 208 NY 547 [1913], affd 233 US 51 [1914] ; see Cole , 1 Misc 3d at 538 ).
Thus, even if petitioner were pardoned of the 1985 conviction, it would not eliminate the fact of that conviction, and this prior conviction of a violent felony would remain a lawful basis for enhancing petitioner's sentences on the 1993 and 2003 convictions (see People ex rel. Prisament v. Brophy , 287 NY 132, 135 [1941] ["(A) pardon exempts a person who has received and accepted it from further punishment for the crime of which he (or she) has been convicted, regardless of whether or not executive pardon wiped out the judicial finding of guilt. Increased punishment ... for any offender who commits a second error is not, however, further punishment for the prior offense."], cert denied 317 US 625 [1942] ; People ex rel. Brown v. Martin , 264 App Div 746, 746-747 [3d Dept 1942] ). Thus, regardless of the label, petitioner's request for relief from his current sentences on the basis of his alleged innocence of the 1985 conviction is, in essence, a request for commutation of his current sentences.
Finally, respondent repeatedly advised petitioner that, pursuant to the Governor's Guidelines for Review of Executive Clemency Applications (see Petition, Ex. 9; Answer, Ex. A ["Guidelines"] [available at http://www.doccs.ny.gov/directives/GRECA.pdf] ), he will "become eligible to apply for clemency in the form of commutation of sentence on November 10, 2024," at which time he will have "satisfied a basic requirement that inmates first serve at least one-half of the court-imposed minimum sentence before seeking clemency" (Petition, Ex. 3; see Answer, Ex. B). This response is wholly consistent with the Guidelines and Directive 6901, and petitioner does not dispute that he is ineligible for commutation of sentence under this standard (see Sturnialo , 90 Misc 2d at 277 ). Nor is it disputed that "[t]he adoption of the [G]uidelines by the Governor is well within his constitutional power" and that "[n]o illegal or impossible conditions are specified in the [G]uidelines" (id. ; see Vanilla , 272 App Div at 859 ).
Similarly, to the extent that respondent's determinations can be read as a denial of petitioner's request for a pardon upon innocence on behalf of the Governor (see Petition, Exs. 6, 8; Answer, Exs. C, D), petitioner presents no basis for judicial review of this exercise of executive discretion.
Based on the foregoing, the Court concludes that petitioner has failed to allege or establish any mandatory, nondiscretionary action that respondent failed to perform and has not otherwise demonstrated a clear right to the relief sought in the Petition (see Matter of Boyd , 52 AD3d at 1128-1129 ; Sturnialo , 90 Misc 2d at 277-278 ).
CONCLUSION
To the extent not expressly addressed herein, the Court has considered petitioner's remaining arguments and finds them either to be not properly before the Court and/or lacking in merit.
ORDERED and ADJUDGED that the petition is denied, and the proceeding is dismissed.
This constitutes the Decision & Order of the Court, the original of which is being transmitted to respondent's counsel for filing and service; all other papers are being delivered to the Albany County Clerk. The signing of this Decision & Order shall not constitute entry or filing under CPLR 2220, and counsel is not relieved from the applicable provisions of that section respecting filing, entry and notice of entry.
Papers Considered:
1. Order to Show Cause (O'Connor, J.), dated November 22, 2017; Verified Petition, verified on November 1, 2017, with attached exhibits 1-10;
2. Answer, dated November 14, 2018, with annexed exhibits A-D; Memorandum of Law in Support of Respondent's Answer, dated November 15, 2018; and
3. Reply, dated November 27, 2018.