People v. Del Rio

• Decision Date: 30 April 1964
• Citation: 250 N.Y.S.2d 257,199 N.E.2d 359,14 N.Y.2d 165
• Parties: , 199 N.E.2d 359 The PEOPLE of the State of New York, Respondent, v. Francisco Molina DEL RIO, Also Known as Pancho, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 257

250 N.Y.S.2d 257

14 N.Y.2d 165, 199 N.E.2d 359

The PEOPLE of the State of New York, Respondent, v. Francisco Molina DEL RIO, Also Known as Pancho, Appellant.

Court of Appeals of New York.

April 30, 1964.

Samuel A. Neuburger and Andrew R. Tyler, New York City, for appellant.

Frank S. Hogan, Dist. Atty. (H. Richard Uviller, New York City, of counsel), for respondent.

Marvin Moses Karpatkin, Arthur Grae Shapiro and Janet Ann Johnson, New York City, for New York Civil Liberties Union, amicus curiae.

DESMOND, Chief Judge.

In June, 1961, on a jury's verdict, defendant was sentenced for murder, second degree (and other crimes) to imprisonment for from 20 years to life. After his appeal to the Appellate Division had resulted in a unanimous affirmance, leave to appeal to this court was granted him and he took the appeal to us on March 11, 1963. On October 3, 1963 (13 N.Y.2d 899, 243 N.Y.S.2d 682, 193 N.E.2d 508) we granted a motion made by the People to dismiss the appeal for 'mootness' on a showing that defendant had left the United States for Cuba, that his sentence had been commuted so that the minimum would be the time already served and the maximum a life term, and that he had been released from prison on parole and deported by the United States Immigration Service to his native Cuba.

Later, when defendant's application for vacatur of the dismissal was presented to us, we were told (mistakenly, as it now appears) that defendant had 'never executed any waiver, consent, application or other request for commutation' or agreed to his removal from prison and from the United States and that 'the first notice that he had of his deportation was at approximately 3:00 o'clock in the afternoon that he was deported.' We set aside the dismissal and put the appeal back on our calendar.

However, as we now learn, we acted on an erroneous statement of alleged facts. A former Assistant Counsel to the Governor makes his affidavit as follows:

'I am familiar with the proceedings relating to the commutation of sentence of Francisco Molina del Rio and submit this affidavit in connection with a matter now pending in the Court of Appeals of the State of New York on Molina's appeal from a judgment of the former Court of General Sessions convicting him of the crime of murder in the second degree.

'At the time Molina's life sentence was commuted in April, 1963, I was an Assistant Counsel to the Governor of the State of New York and in such capacity I was aware of and had initial charge of all executive clemency applications that were submitted for the Governor's attention.

'An application for executive clemency for Molina was submitted to the Governor by officials of the United States Department of Justice who represented to the Governor that Molina's release would be helpful in securing the release of twenty-one American citizens then imprisoned in Cuba.

'On March 13, 1963, the Governor signed an executive order commuting Molina's life sentence, effective at a future date. As with all such orders, the Governor's action was contingent upon the prisoner's voluntary acceptance of its terms. Unless or until the prisoner himself signifies in writing his desire and willingness to accept and abide by the arrangements provided, he will not be released.

'Accordingly, on the effective date of the Governor's order, April 22, 1963, I proceeded to Green Haven Prison to witness the release procedures.

'Prior to Molina's being brought down and spoken to by the parole authorities, and to assure that the prisoner fully understood what was transpiring, the Warden of Green Haven Prison personally went to Molina's cell with a copy of the Governor's order, to explain the matter to him. The Warden later returned and stated that Molina fully understood, had agreed to sign the parole release agreement, and would return to Cuba.

'I was present when the terms and conditions of the Governor's order of commutation were explained to Molina by the senior institutional parole officer who was called to the prison from his home specifically for that purpose, and it was made explicitly clear to Molina that he could agree or not agree to his release on these conditions, as he saw fit.

'The principal condition, of course, was that Molina would leave this country for Cuba and would not thereafter ever return to the United States. Molina readily agreed, and he willingly signed the customary parole release agreement, a copy of which he kept for himself.

'Indeed, Molina was so eager to sign that he took a pen and affixed his signature even before the handcuffs could be removed from his wrist. He was then given a considerable amount of money which he had on deposit at the prison and he was thereafter released to the custody of the Immigration authorities.

'I was also present when Molina boarded an airplane at Idlewild Airport on the first leg of his flight to Cuba. He sat quietly for several minutes prior to take-off, made no complaints, raised no objections and talked affably with the other Cubans who were being transported at the same time.'

Submitted to us with the affidavit is a 'Certificate of Release or Parole' dated March 15, 1963, signed by the three members of the State Parole Board...