Ferrante v. Stanford

• Decision Date: 01 May 2019
• Docket Number: Index No. 2789/15,2016–06336
• Parties: In the Matter of Danielle FERRANTE, etc., Respondent, v. Tina M. STANFORD, etc., Appellant.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 31

100 N.Y.S.3d 44

In the Matter of Danielle FERRANTE, etc., Respondent,

v.Tina M. STANFORD, etc., Appellant.

2016–06336

Index No. 2789/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 29, 2018

May 1, 2019

Letitia James, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Philip V. Tisne of counsel), for appellant.

Kathy Manley, Selkirk, NY, for respondent.

JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

OPINION & ORDER

LEVENTHAL, J.P.

Tina M. Stanford, as the Chair of the New York State Parole Board (hereinafter the Chair or the appellant), appeals from an order of the Supreme Court which, among other things, held her in civil contempt for the manner in which the New York State Parole Board (hereinafter the Board) conducted a de novo determination on the petitioner's application for parole release. We agree with the Supreme Court's determination granting the petitioner's motion to hold Stanford, as Chair of the Board, in civil contempt. According to our research, this case marks the first time the Appellate Division has upheld a finding of civil contempt which was based on the manner in which the Board conducted a de novo determination of a petitioner's parole release application. We emphasize, however, that our holding is limited to the unique facts of this particular case.

In 1975, John MacKenzie (hereinafter the petitioner) shot and killed Police Officer Matthew Giglio during the course of a burglary. The petitioner was convicted of murder in the second degree, among other crimes, upon a jury verdict, but this Court reversed the judgment of conviction and ordered a new trial based on the improper admission into evidence of certain pretrial custodial statements (see People v. MacKenzie , 78 A.D.2d 892, 432 N.Y.S.2d 901 ). Following a second trial, the jury convicted the petitioner of murder in the second degree, manslaughter in the second degree, burglary in the second degree, grand larceny in the second degree, criminal possession of a weapon in the third degree, and possession of burglar's tools. At sentencing, the County Court commented that the petitioner shot Officer Giglio, who was in uniform and whose weapon was holstered, at close range, grievously wounding him and causing his death some 10 weeks later. The County Court sentenced the petitioner to an aggregate term of imprisonment of 25 years to life. This Court affirmed the petitioner's judgment of conviction, holding that, although certain pretrial custodial statements were improperly admitted into evidence at the second trial, that error did not require reversal (see People v. MacKenzie , 193 A.D.2d 700, 598 N.Y.S.2d 44 ). The petitioner became eligible for parole release in 2000.

In December 2014, the petitioner, who was then 68 years of age and had been incarcerated for nearly 40 years, appeared before the Board in connection with his eighth parole release application interview. In support of his application, the petitioner submitted a personal statement, as well as numerous letters advocating for his release, including letters from a former prosecutor, a retired judge, and a former bishop of Albany. The petitioner's institutional record reflected that he earned three college degrees, received numerous commendations, including one for providing assistance to a corrections officer who fell ill, had no disciplinary infractions since 1980, assumed leadership positions in various prison programs, worked for years to found a Victims' Awareness Program in prison, and was assessed "low" for all risk factors on his Correctional Offender Management Profiling for Alternative Sanction (hereinafter COMPAS) risk assessment (see Matter of Cassidy v. New York State Bd. of Parole , 140 A.D.3d 953, 954, 35 N.Y.S.3d 132 ).

The Board denied the petitioner's application for parole release. After exhausting his administrative remedies, the petitioner commenced a proceeding pursuant to CPLR article 78 to annul the Board's determination and to direct the Board to conduct a de novo interview before a different panel of the Board. In a judgment dated October 2, 2015, the Supreme Court, in effect, granted the petition and annulled the Board's determination. The Supreme Court concluded, inter alia, that the Board's determination to deny parole release was not supported by an application of the factual record to the statutory factors set forth in Executive Law § 259–i, that it was clear that the Board's determination was based exclusively on the severity of the petitioner's offense, and that there was no rational support in the record for the Board's determination. The Supreme Court remitted the matter to the Board "to make a de novo determination on petitioner's request for parole release" to be held before a different panel of the Board. The Board did not appeal from the Supreme Court's judgment.

On December 15, 2015, the Board conducted a de novo interview before a different panel of the Board. During the interview, the petitioner discussed the crimes underlying his convictions, his rehabilitative efforts, his remorse, and his release plans. He stated that, around the time of the crimes, he was working as a "fence," a sort of "middleman" for stolen goods. The petitioner made statements to the effect that, having taken a large number of prescription pills in the time leading up to the crimes, he did not remember shooting Officer Giglio. He said, however, "it's my fault, a hundred percent my fault." The petitioner later added, "I shouldn't [have] allowed myself to take medication knowing that I wouldn't remember or know what I was doing. So it's my fault, my responsibility today. Believe me, I did not wake up that morning thinking I would do a crime, let alone shoot anyone, let alone a police officer." The petitioner said that he worked for 13 years to found the Victims' Awareness Program "in memory of Matthew [Officer Giglio], to show his family that this is the best I can do to make up for it, although I can't possibly make up for them losing their father." The petitioner spoke about his offers for employment and housing, and about the family and other support resources available to him, if he were released. He submitted additional letters of support as well as an updated COMPAS assessment wherein he again was assessed "low" for all risk factors. That month, the Board denied his application for parole release.

The petitioner moved to hold the appellant in civil contempt for failure to comply with the judgment dated October 2, 2015. In an order dated March 28, 2016, the Supreme Court stated that the Board's December 2015 determination "appear[ed] to suffer from the same infirmities as the vacated December 2014 [determination]" but, noting that the court did not have the full record, "declin[ed] to make a summary determination as to whether an order of contempt [wa]s warranted based on the papers before it." The Supreme Court instructed that it would conduct a hearing on May 20, 2016, on the petitioner's civil contempt motion unless an "actual de novo hearing" was held before that date. Thereafter, the same court held a hearing on the petitioner's motion. The petitioner testified at the hearing. Although the Board participated in the hearing, it did not present witnesses.

Following the hearing, the Supreme Court, in the order appealed from, inter alia, granted the petitioner's motion, held the appellant in civil contempt for failing to comply with the judgment dated October 2, 2015, and imposed a fine upon the appellant in the sum of $ 500 per day commencing June 7, 2016, until a de novo interview was held and a decision was issued in accordance with Executive Law § 259–i. The Supreme Court wrote that it could reach no other conclusion than that the Board denied parole release solely on the basis of the petitioner's underlying conviction. The Supreme Court indicated that it could not "gleam from the record before it, the testimony presented or the lack of testimony presented on behalf of the [appellant] any basis for the parole board to have denied release other than on the basis of the underlying crime.... This case begs the question, if parole isn't granted to this petitioner, when and under what circumstances would it be granted?"

Subsequently, following the petitioner's death, this Court granted the appellant's application, inter alia, to substitute Danielle Ferrante, as administrator of the petitioner's estate, for the deceased petitioner, and to amend the caption accordingly. Since the questions raised on this appeal concern the civil contempt finding rendered against the appellant and the amount of the fine imposed for that contempt, the petitioner's death does not render this appeal academic.

"The aim of civil contempt is to vindicate a party's right to the benefits of a judicial mandate or to compensate that party for the interference by the contemnor" ( Matter of Banks v. Stanford , 159 A.D.3d 134, 140, 71 N.Y.S.3d 515 ; see Matter of McCormick v. Axelrod , 59 N.Y.2d 574, 583, 466 N.Y.S.2d 279, 453 N.E.2d 508 ; Spencer v. Spencer , 159 A.D.3d 174, 177, 71 N.Y.S.3d 154 ). To support a finding of civil contempt, first, there must be a lawful order of the court in effect clearly expressing an unequivocal mandate. Second, it must appear with reasonable certainty that the order has been disobeyed. Third, the party to be held in contempt must have had knowledge of the court's order. Fourth, the violation of the court's order must be shown to impede, impair, or prejudice the rights of another party (see Matter of McCormick v. Axelrod , 59 N.Y.2d at 583, 466 N.Y.S.2d 279, 453 N.E.2d 508, amended on other grounds 60 N.Y.2d 652, 467 N.Y.S.2d 571, 454 N.E.2d 1314 ; Matter of Banks v. Stanford , 159 A.D.3d at 140, 71 N.Y.S.3d 515 ; see also Judiciary Law § 753[A][3] ; El–Dehdan v. El–Dehdan , 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 ; McCain v. Dinkins , 84 N.Y.2d 216, 226, 616 N.Y.S.2d...