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IN RE: Leo A. MARINO (2008)

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

IN RE: Leo A. MARINO, Appellant, v. Felix ROSA, as Director of the Executive Clemency Bureau, Respondent.

Decided: October 30, 2008

Before:  PETERS, J.P., ROSE, LAHTINEN, KANE and KAVANAGH, JJ. Leo A. Marino, Collins, appellant pro se. Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Sackett, J.), entered August 23, 2007 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

On the same day that he made an identical request to the Governor (see Matter of Marino v. Pataki, 55 A.D.3d 1171, 867 N.Y.S.2d 219 [decided herewith] ), petitioner, an inmate at Collins Correctional Facility in Erie County, filed a request under the Freedom of Information Law (see Public Officers Law art. 6) (hereinafter FOIL) for any and all records related to his prior criminal case which were in the possession of respondent's office and used in connection with his clemency application.   After receiving no response, petitioner commenced the instant CPLR article 78 proceeding challenging what he deemed to be a constructive denial of his FOIL request.   Respondent thereafter moved to dismiss the petition.   Supreme Court granted respondent's motion and dismissed the petition, prompting this appeal.

We affirm.   Pursuant to Executive Law § 15, the Governor is empowered to determine clemency applications.   In his affidavit in support of the motion, respondent stated that the Executive Clemency Bureau serves as a “clearinghouse” for clemency applications, forwarding all records pertinent to such applications to the Governor as it is the Governor's office “that maintains the records used in clemency determinations.”   Inasmuch as the documents used in connection with petitioner's clemency application were necessarily in the possession of the Governor, rather than respondent's office, at the time of petitioner's FOIL request, the petition was properly denied.

ORDERED that the judgment is affirmed, without costs.



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