Matter of Rodriguez v Fischer

[*1] Matter of Rodriguez v Fischer 2012 NY Slip Op 51792(U) Decided on September 17, 2012 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 17, 2012
Supreme Court, Kings County

In the Matter of the Application of Robert Rodriguez, Plaintiff,

against

Brian Fischer, Commissioner, New York State Department of Corrections, Defendant.



13726/11



Pro-Se Petitioner

Robert Rodriguez

Attorney for Respondent

Michael J. Keane

Assistant Attorney General

Department of Law

120 Broadway

New York, NY 10007

212-416-8550

Francois A. Rivera, J.

By order to show cause and petition, signed by the court on January 12, 2012, petitioner has moved pro se and pursuant to CPLR Article 78 for an order which, in his own words, (1) directs the respondent to seek petitioner's re-sentencing pursuant to Correction Law § 601-a; (2) expunge from respondent's files a sentence and commitment order (hereinafter SCO) issued in 1983, and an amended SCO issued in 1985; (3) directs the respondent to provide certain Freedom of Information Law (FOIL) requested records; and (4) awards him attorney's fees.

The court directed that the petitioner serve the respondent and the Attorney General by certified mail return receipt requested on or before February 7, 2012. Petitioner submitted an affidavit of service demonstrating compliance with the Court's directive on service.

BACKGROUND

Petitioner's affidavit in support of the order to show cause and verified petition [*2]alleges the following salient facts. On December 2, 1983, petitioner was convicted by a jury of four counts of murder in the second degree, and two counts of attempted robbery in the first degree in Kings County Supreme Court under Indictment No. 6069/82 based on his participation in an attempted robbery in which two innocent people were shot to death.

New York State Supreme Court Justice Edward K. Pincus sentenced petitioner to two consecutive terms of 25 years to life on the intentional murder counts concurrent to two consecutive terms of 25 years to life on the felony murder counts and concurrent to a term of 5 to15 years on the attempted robbery count for a total of fifty years to life. In February of 1984 while serving his sentence, petitioner was erroneously notified that his sentence was computed to be 100 years to life.

On May 16th and 21st of 1984, petitioner wrote to the Superintendent of the Department of Corrections and Community Supervision (hereinafter DOCCS) requesting a copy of his sentencing minutes. By letter dated May 21, 1984, the Inmate Record Coordinator (hereinafter IRC) notified petitioner by mail that the sentencing minutes were not in the Superintendent's possession and that he should write to the court for same.

In an effort to resolve the discrepancy, the petitioner made several unsuccessful attempts to obtain a copy of the sentencing minutes from the correctional facility. However, the SCO was apparently amended to reflect the 50 years to life sentence.

Approximately 25 years later, the petitioner made several document requests under FOIL to retrieve a copy of the sentencing minutes and a copy of the correspondence between the respondent and other entities involved in the search for the minutes.

The petitioner alleges that the FOIL requests were only partially satisfied and further claims that the determination not to fully comply with his document requests was arbitrary and capricious. He also claims that DOCCS should have sought his re-sentencing instead of accepting the amended SCO without checking the sentencing minutes.

MOTION PAPERS

Petitioner's motion papers consist of an amended order to show cause, dated January 12, 2012, an amended petition, an affidavit in support, an order pursuant to

CPLR 1101 granting a reduced filing fee, an affidavit in support of the application for the reduced filing fee, two affidavits of service and several annexed exhibits labeled A through K. Exhibit A is described as petitioner's 1983 SCO. Exhibit B is a copy of a letter to the IRC dated May 16, 1984 in which the petitioner requests a copy of his sentencing minutes. Exhibit B2 is the IRC's letter in response dated May 21, 1984. Exhibit B3 is copy of a letter dated November 21, 1984, addressed to Elmira Correctional Facility in which the petitioner's request a copy of the sentencing minutes. Exhibit C is described as the County Clerk's record of petitioner's conviction and sentence. Exhibit D is the IRC's request for a copy of the sentencing minutes to the Principal County Clerk, Supreme Court, Kings County. Exhibit D2 is the Principal County Clerk's response to the [*3]IRC's request, dated September 10, 1985. Exhibit D3 is the IRC's request to the Chief Court Reporter at Supreme Court, Kings County dated October 2, 1985, seeking a copy of the sentencing minutes. Exhibit D4 is the Office of Court Reporters' response to the IRC's request, dated October 15, 1985. Exhibit D5 is the IRC's request for a copy of the sentencing minutes directed to the sentencing clerk, dated November 14, 1985. Exhibit E is the amended SCO dated November 6, 1985. Exhibit F is a response to petitioner's FOIL request dated October 18, 2010, directing the petitioner to obtain a copy of the sentencing minutes from Supreme Court, Kings County. Exhibit G is petitioner's request to the IRC to be re-sentenced and obtain certain records pursuant to FOIL, dated October 25, 2010. Exhibit H is the response to petitioner's requests from the DOCCS, dated October 27, 2010. Exhibit H2 is DOCCS' first letter response to petitioner's requests, dated October 26, 2010.

Exhibit I is petitioner's FOIL request for: i) a copy of any correspondence between the petitioner and DOCCS concerning the SCO or the sentencing minutes; ii) a copy of the certificate of disposition that was attached to the September 10, 1985, letter of the Principal County Clerk, Supreme Court, Kings County; and iii) a copy of the correspondence attached to the amended SCO, dated October 25, 2010. Exhibit I2 is DOCCS' letter in response to petitioner's November 8, 2010, FOIL request, partially providing certain correspondence. Exhibit J is petitioner's appeal, dated November 15, 2010, from the decisions rendered on his FOIL requests. Exhibit K is DOCCS' letter, dated May 23, 2011, in response to petitioner's appeal. Also annexed are petitioner's letters to Chief Clerk Randall at the Supreme Court, Kings County, dated December 22, 2011, and his letter to Judge King, dated December 26, 2011.

LAW AND APPLICATION

The petitioner brought this Article 78 proceeding, to obtain an order compelling the respondent to seek his re-sentencing pursuant to Correction Law § 601-a.; expunging both SCOs issued in 1983 and in 1985 from the respondent's file; directing the respondent to produce certain correspondences sought in FOIL requests, and awarding attorney's fees.

A review of the instant petition shows that the petitioner is trying to clear up an apparent discrepancy between the sentence imposed by the sentencing court and the sentence reflected in the 1983 and 1985 SCO. The petitioner has taken various unsuccessful steps to obtain his sentencing minutes culminating in the instant petition.

This Court requisitioned the Kings County Supreme Court Criminal Term Clerk's office to retrieve the petitioner's Criminal Court file from its archives. The Court then reviewed its content to ascertain the procedural history leading to the petitioner's conviction and sentence, and to locate the minutes of petitioner's sentencing. The file did not contain the petitioner's sentencing minutes. The Court then requested a search for the archived stenographic notes of Susan Shelling, for December 22, 1983, the court reporter at the time of the petitioner's sentencing. The court may take judicial notice of undisputed [*4]court records and files (Kingsbrook Jewish Medical Center v. Allstate Ins. Co., 61 AD3d 13, [2d 2009] citing Matter of Khatibi v. Weill, 8 AD3d 485 [2d 2004]).By affidavit sworn to on August 2, 2012, Keith Olarnick, the official court reporter appointed to conduct the search, averred that he searched for and could not locate the notes in question.

In the meantime, the Court received a series of correspondence from Michael J. Keane, an Assistant Attorney General, and from the petitioner which showed that the parties had communicated with each other regarding the instant petition. The three letters are further discussed below.

Assistant Attorney General Keane's sent the first letter, dated April 16, 2012, in which he stated the following facts. His office was counsel to the respondent and he contended that the petitioner had brought the proceeding in the wrong forum and against the wrong respondent. He referred to an annexed correspondence that he received from DOCCS dated March 22, 2012. That correspondence explained that an amendment of petitioner's SCO from 1983 to 1985 reflected that the two consecutive terms of 25 years to life on the intentional murder counts and the two consecutive terms of 25 years to life on the felony murder counts were to run concurrently with each other to yield an aggregate minimum period of incarceration of fifty years to life. He requested that the court grant leave to submit an answer, or dismiss the petition, sua sponte, or transfer the matter to the criminal court.

The Court also received a letter from the petitioner, dated April 12, 2012. Petitioner stated therein that he was ready to file a response to the respondent's motion to dismiss, but wanted the court to make no decision on the petition until the parties fail to settle the matter on their own. The court assumes that the petitioner was referring to Mr. Keane's letter of April 12, 2012, as respondent's motion to dismiss.

Assistant Attorney General Keane's sent another letter, dated August 6, 2012, in which he included what he described as the sentencing minutes of the petitioner that he obtained from the District Attorney of Kings County. The aforementioned letters were not filed with the Kings County Clerk's office and failed to include affidavits of service.

THE PARTIES' CORRESPONDENCE

A party seeking affirmative relief of the court such as an order of dismissal based on an objection of law must follow the procedures set forth in the CPLR and applicable court rules for making a motion. The Uniform Rules for New York State Trial Courts set forth at 22 NYCRR 202.7 and 202.8 the court rules for motion practice. 22 NYCRR 202.7(a) provides that no motion shall be filed with the court unless they have been served and filed with the motion papers on notice of motion. It also directs compliance with the statutory procedures prescribed in CPLR 2214. At a minimum, a movant must file a notice of motion that shall "specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor" (CPLR 2214(a); see Tirado v. Miller, 75 AD3d 153, 158, 901 N.Y.S.2d [*5]358, 362 [2d 2010]).

22 NYCRR 202.8 provides that all motions shall be returnable before the assigned judge, and all papers shall be filed with the court on or before the return date.

Article 21 of the CPLR sets forth, among other things, the rules pertaining to the form, filing and service requirements of all papers to be considered by the court.

Applying the aforementioned court rules and statutory procedures to the aforementioned correspondence, the Court finds that Assistant Attorney General Keane's letter dated April 16, 2012, is not a motion. Nor did the letters in form, content or substance constitute a pleading. Although, it is apparent that Assistant Attorney General Keane has made a good faith effort to take action in response to the petition, those efforts are not properly before the court for failure to submit same through the appropriate forms and procedures.

As to the petitioner's request for a stay, CPLR 2201 provides that except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just. Turning to the petitioner's letter, the court finds that his request for a stay of the petition was not made in compliance with the applicable court rules and procedures. It should have been made in a form of a motion pursuant to CPLR 2214 (see Carter v. Johnson, 84 AD3d 1141, 1142 [2d 2011]).

Furthermore, there is nothing to indicate that the respondent was consenting to a stay. Moreover, it is apparent that the petitioner's reason for asking the court to delay its decision was because the petitioner incorrectly assumed that the respondent's letter was a motion to dismiss his petition and he wanted an opportunity to negotiate the issue with the respondent. Under these circumstances it would have been unjust to grant a stay.

Both parties acknowledged that they had communicated by phone prior to sending their letters, and the petitioner was made aware of the respondent's letter from their conversations. The court has disregarded the respondent's letter dated April 16, 2012, in deciding the instant petition. The court has also disregarded the petitioner's letter dated April 12, 2012, since it meant to reply to the respondent's letter of April 16, 2012.

Based on the foregoing, the court finds that the respondent was duly served and has neither answered the petition nor made a motion to dismiss nor made a motion to extend its time to do either. The instant petition is therefore unopposed and the allegations of fact contained therein are deemed admitted (LIUS Group Intl. Endwell, LLC v. HFS Intl., Inc., 92 AD3d 918, 919 [2d 2012]; citing (Woodson v. Mendon Leasing Corp., 100 NY2d 62, 71 [2003]).

ARTICLE 78 PROCEDURE

Article 78 of the CPLR establishes the procedure for challenging determinations of administrative agencies, public bodies or officers (see CPLR 7802 (a); Luczaj v. Bortnik, 91 AD3d 872, 873,[2d 2012]). Under the common law, procedure for relief was obtained by procedures under writs of certiorari, prohibition or mandamus. Distinctions between these procedures are no longer important, but are still relevant for analyzing Article 78 [*6]proceedings. The petitioner in this case is not seeking a judicial review, which would be appropriate under writ of certiorari, or to prohibit a specific action, which would be appropriate under writ of prohibition (see generally, Vincent C. Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR, CC7801:2 and C7801:4).

Rather he seeks mandamus to compel through a "judicial command to an officer or body to perform a specified ministerial act that is required by law to be performed" (see Brownlee v. Kohm, 61 AD3d 972, 973[2d 2009]). CPLR 7803(1) mirrors a mandamus to compel and allows the petitioner to review "whether the body or officer failed to perform a duty enjoined upon it by law" (see CPLR 7803(1); Klein v. New York State Office of Temp. & Disability Assistance, 84 AD3d 1378, 1380 [2d 2011]). The petitioner seeks a court order compelling the respondent to take certain actions that he alleges are required by law. Specifically, he seeks his re-sentencing, to expunge the SCOs and to comply with his document requests under FOIL.

Importantly, the Second Department noted that the remedy of mandamus to compel "may be granted only if petitioner establishes a clear legal right to the relief requested" (Rozz v. Nassau County Dept. of Assessment, 96 AD3d 952 [2d 2012]). The Court must apply this standard to all the petitioner's requests.

Mandamus to compel is appropriate only where the right to relief is clear and the action sought to be compelled is an act commanded to be performed by law involving no exercise of discretion (See generally, Matter of Korn v. Gulotta, 72 NY2d 363 [1988]). Mandamus is addressed to the discretion of the court (County of Albany v. Connors, 300 AD2d 902 [3d 2002]).

On the issue of re-sentencing, the petitioner cites Correction Law § 601-a as statutory support for the relief requested. Correction Law § 601-a provides in pertinent part as follows:

Whenever it shall appear to the satisfaction of the department based on facts submitted on behalf of a person sentenced and confined in a state prison, that any such person has been erroneously sentenced, it shall be the duty of the department to communicate with the sentencing court, the inmate's defense attorney and the district attorney of the county in which such person was convicted. If upon investigation, the sentencing court, the defense attorney or the district attorney believes that the person has been so erroneously sentenced, the sentencing court, or the district attorney acting at the direction of the sentencing court, shall notify the department and arrange for the person to be

heard and properly resentenced.

Petitioner contends that the statute mandates DOCCS to contact the districtattorney when it found out about the sentencing issue. However, this statute does not require DOCCS to contact the above agencies whenever an inmate makes such a requests, rather [*7]it imposes the obligation when DOCCS believes that the inmate has been erroneously sentenced (Correction Law § 601-a). The petition did not show any evidence supporting that DOCCS held such belief.

Furthermore, the petitioner does not contend that his sentence was unauthorized, illegally imposed or otherwise invalid as a matter of law. Rather, he points to an alleged error in the earlier SCO which he contends was inconsistent with the sentence imposed by the court. He further alleges that the erroneous SCO was amended by the 1985 SCO to reflect the proper sentence. Thus, petitioner is describing an error that was, by his own admission, addressed and corrected before he filed the instant petition and not an illegality pertaining to the sentence actually imposed.

Furthermore, Article 78 review cannot be utilized to challenge a determination where it "can be adequately reviewed by appeal to a court or to some other body or officer or where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the petitioner's application..." (see, CPLR 7801(1)). Criminal Procedure Law 440.20(1) provides for a review of a prior imposed sentence by the sentencing court and clearly states, "at any time after the entry of a judgment, the court in which the judgment was entered may, upon the motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law." In addition, an Article 78 proceeding may not be used to review a decision made in connection with a criminal action (see, CPLR 7801(2)).

For those reasons, petitioner's application for mandamus on the issue of re-sentencing must be denied.

Although the mandamus is denied, it is without prejudice to petitioner's right to make a motion before the Supreme Court, Kings County Criminal Term, to correct his sentence, pursuant to CPL 440.20. The statute places the burden on the petitioner to show "that it was unauthorized, illegally imposed or otherwise invalid as a matter of law" (People v. Cunningham, 305 AD2d 516, 517 [2d 2003]). Pursuant to CPL 440.30, the petitioner has to "make such motion in writing and upon reasonable notice to the People" (CPL 440.30[1]).

The petitioner also seeks mandamus to compel the respondent to expunge the 1983 and amended 1985 SCOs from the respondent's files. He also erroneously contends that DOCCS did not have authority to correct the 1983 SCO by amendment without seeking leave of the court. In fact, the Department of Correctional Services "has a continuing, nondiscretionary, ministerial duty to make accurate calculations of terms of imprisonment, a duty that requires it to correct known errors" (Colon v. Fischer, 74 AD3d 1670 [3d 2010]). The Court must also deny this request for failure to show a clear right to such a relief. In particular, the petitioner cites no law or statute authorizing the expungement of the 1983 and 1985 SCO.

FOIL REQUESTS [*8]

The petitioner alleges that respondent failed to produce certain correspondences. On October 25, 2010 and November 8, 2010, the petitioner made requests to DOCCS to provide him with all letters it sent out and received pertaining to his sentencing minutes. The petitioner acknowledged receipt of several requested letters. He alleges that he was not provided with the correspondence that DOCCS received with the amended SCO of 1985, and the Certificate of Disposition # 1574, attached to the September 10, 1985, letter from the court clerk. DOCCS' Deputy Counsel replied to his request but only addressed the sentencing minutes. The petitioner alleges that DOCCS' denial of the remaining missing documents was arbitrary and capricious and violated the FOIL. He now asks the court to review DOCCS' decision.

FOIL is an article of Public Officers Law § 87 that allows members of the public to access records of governmental agencies and "imposes a broad duty on government to make its records available to the public" (Gould v. New York City Police Dept., 89 NY2d 267, 274 [1996]). To analyze the respondent's failure to provide the petitioner with the records, the Court presumes that all government records are open for public inspection and copying, subject to certain exemptions of Public Officers Law § 87(2) (Verizon New York, Inc. v. Mills, 60 AD3d 958, 959 [2d 2009]). The exemptions must be "narrowly interpreted" to guarantee that the public has maximum access to government records (Data Tree, LLC v. Romaine, 849 N.Y.S.2d 489, 494 [2007]). Furthermore, the burden to demonstrate that the requested records indeed qualify for an exemption rests on the agency (id). To successfully demonstrate such exemption, the agency has to provide "a particularized and specific justification for denying access" (Markowitz v. Serio, 862 N.Y.S.2d 833,836 [2008]).

The respondent in this case has neither filed an answer, nor moved for dismissal of the petition. The petitioner's allegations of fact pertaining to his FOIL request are therefore deemed admitted (LIUS Group Intl. Endwell, LLC v. HFS Intl., Inc., 92 AD3d 918, 919 [2d 2012]; citing (Woodson v. Mendon Leasing Corp., 100 NY2d 62, 71 [2003]).

Since the respondent failed to prove that a statutory exemption applies to petitioner's requests, FOIL "compels disclosure, not concealment" of the documents requested (Data Tree, LLC, 849 N.Y.S.2d at 495).

The petitioner made two requests that the Court will address separately. In search for the sentencing minutes, DOCCS exchanged correspondences with certain entities asking for assistance in finding the minutes. One letter, sent to DOCCS from the court clerk, dated September 10, 1985, indicated that a certificate of disposition #1574 was enclosed. Since the petitioner requested DOCCS to provide him with all existing documents pertaining to the search for the minutes, DOCCS had a statutory duty to either give the certificate of disposition to the petitioner or to provide a particularized and specific reason for denial (see NY Pub. Off. Law 89 (McKinney); New York State United Teachers v. Brighter Choice Charter Sch., 15 NY3d 560, 569, [2010]). [*9]

Since DOCCS neither indicated that it chose to withhold the certificate of disposition nor gave a reason why it should be withheld, DOCCS is ordered to provide the certificate of disposition to the petitioner.

The petitioner's second request concerns correspondence between DOCCS and the sentencing clerk, when DOCCS requested assistance from the clerk in finding the sentencing minutes in a letter, dated November 14, 1985. Thereafter, the clerk sent the amended 1983 SCO to DOCCS. When the petitioner requested the documents, he received the November 14, 1985 letter, which DOCCS sent to the sentencing clerk, among other correspondences. DOCCS never indicated that certain letters were withheld. The petitioner, however, assumed that the sentencing clerk sent some correspondence back along with the amended SCO, and that it was withheld by DOCCS. As DOCCS has not indicated a particularized or specific reason for denial, the court compels DOCCS to provide the documents and correspondence to the petitioner or a sufficient reason that compliance is not required.

Petitioner also seeks attorney's fees for prosecuting the instant special proceeding. It is well settled in New York that a prevailing party may not recover attorneys' fees from the losing party except where authorized by statute, agreement or court rule (U.S. Underwriters Ins. Co. v. City Club Hotel, LLC, 3 NY3d 592, 597 [2004]). A party may obtain reasonable attorney fees in a FOIL proceeding if party establishes that (1) it has substantially prevailed, (2) record sought was of clearly significant interest to general public, and (3) agency lacked reasonable basis in law for withholding record; however, even if party meets those requirements, award of attorney fees remains discretionary with Supreme Court (Beechwood Restorative Care Center v. Signor, 11 AD3d 987 [4d 2004]), affirmed 5 NY3d 435 [2005]).

Even when statutory prerequisites are met for attorney's fees in an action under FOIL, the decision to grant or deny counsel fees still lies within the discretion of the court (Maddux v. New York State Police, 64 AD3d 1069 [3d 2009]).

Regardless, the petitioner has not retained a lawyer to represent him in the proceedings and therefore is not entitled to award of attorney fees ( see Leeds v. Burns, 205 AD2d 540[2d 1994]). Therefore, the petitioner's request for attorney's fees is denied.

In conclusion, petitioner's request pursuant to CPLR Article 78 for an order directing the respondent to seek petitioner's re-sentencing pursuant to Correction Law § 601-a is denied. Petitioner's request for an order expunging a SCO issued in 1983 and amended SCO issued in 1985 is denied.

Petitioner's request for an order directing the respondent to provide certain FOIL requested records is granted to the extent that DOCCS is directed to provide the petitioner with the certificate of disposition #1574 received from the court clerk with the clerk's September 10, 1985 letter. The Court also compels DOCCS to provide to the petitioner all documents that are connected to the letter dated November 14, 1985, or a sufficient reason that compliance is not required. [*10]

Petitioner's request for an order granting him an award of attorney's fees is denied.

The correspondence, minutes and Olarnick's affidavit provided to this Court in connection with this application shall be filed in the Kings County Clerk's Office.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.