Governor and Lieutenant-Governor

Art. IV, §§ 2-4

§ 2. Governor and lieutenant-governor; qualifications.

No person shall be eligible to the office of Governor or Lieutenant-Governor, except a citizen of the United States, of the age of not less than thirty years, and who shall have been five years next preceding his election a resident of this State.

Const. 1777, Art. XVII; amended, Const. 1821, Art. III, § 2; amended, Const. 1846, Art. IV, § 2; amended in 1874; continued without change in Const. 1894, Art. IV, § 2.

§ 3. Election of governor and lieutenant-governor.

Tie vote.

The Governor and Lieutenant-Governor shall be elected at the times and places of choosing members of the Assembly. The persons respectively having the highest number of votes for Governor and Lieutenant-Governor shall be elected; but in case two or more shall have an equal and the highest number of votes for Governor, or for Lieutenant-Governor, the two houses of the Legislature at its next annual session shall forthwith, by joint ballot, choose one of the said persons so having an equal and the highest number of votes for Governor or Lieutenant-Governor.

Const. 1777, Art. XVII; amended, Const. 1821, Art. III, § 3; continued without change in Const. 1846, Art. IV, § 3.

§ 4. Governor; powers and duties.

Salary.

Executive residence.

At

The Governor shall be Commander-in-Chief of the military and naval forces of the State. He shall have power to convene the Legislature, or the Senate only, on extraordinary occasions. extraordinary sessions no subject shall be acted upon, except such as the Governor may recommend for consideration. He shall communicate by message to the Legislature at every session the condition of the State, and recommend such matters to it as he shall judge expedient. He shall transact all necessary business with the officers of government, civil and military. He shall expedite all such measures as may be resolved upon by the Legislature, and shall take care that the laws are faithfully executed. He shall receive for his services an annual salary of ten thousand dollars, and there shall be provided for his use a suitable and furnished executive residence.

Art. IV, § 5

Governor and Lieutenant-Governor

Const. 1777, Art. XVIII; amended, Const. 1821, Art. III, § 4; continued without change in Const. 1846, Art. IV, § 4; amended in 1874; amended, Const. 1894, Art. IV, § 4.

Delegation of authority to invoke military aid.— A statute (Military Law, § 115, Consol. Laws, ch. 36) providing that "in case of any breach of the peace, tumult, riot or resistance to process of this state, or imminent danger thereof, a justice of the supreme court. may call for aid upon the commanding officer of National Guard or Naval Militia," is not in derogation of the functions of the governor as commander-in-chief of the naval and military forces of the state and is not, therefore, unconstitutional under this section. In no sense can the action of a justice proceeding under that statute be deemed a usurpation of the constitutional prerogatives of the governor as commander-in-chief. "The call was not even in the form of an order; it contained no directions as to what troops were to be assembled, or how many, or where. It merely declared that a condition existed which military assistance was needed to suppress; and it requested that such assistance be afforded. This is very far from the exercise of military command." People v. Bard, (1913) 209 N. Y. 304, 103 N. E. 140, affirming 157 App. Div. 943, 142 N. Y. S. 1140.

§ 5. Reprieves; commutations; pardons.

Treason; special provisions relating to.

Annual communication to legislature of reprieves, etc.

The Governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations, as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason, he shall have power to suspend the execution of the sentence, until the case shall be reported to the Legislature at its next meeting, when the Legislature shall either pardon, or commute the sentence, direct the execution of the sentence, or grant a further reprieve. He shall annually communicate to the Legislature each case of reprieve, commutation or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve.

Const. 1777, Art. XVIII; amended, Const. 1821, Art. III, § 5; amended, Const. 1846, Art. IV, § 5.

I. Generally, 380.

II. Commutation and reprieve, 382.

I. GENERALLY.

Nature of pardon, reprieve or commutation.- A pardon, reprieve or commutation is a matter of grace and not of right. Roberts v. State, (1899) 160 N. Y. 217, 54 N. E. 678, affirming 160 N. Y. 217, 54 N. E. 678: People

Governor and Lieutenant-Governor

Art. IV, § 5

v. Frost, (1909) 133 App. Div. 179, 117 N. Y. S. 524. See also Matter of Whalen, (1892) 65 Hun 619, mem., 19 N. Y. S. 915.

Conditional pardon or commutation.—By the terms of this section the governor is empowered to grant reprieves, pardons, and commutations “upon such conditions and with such restrictions and limitations as he may think proper." He may therefore in his discretion annex conditions to a pardon or commutation and those conditions, when imposed, are binding. People v. Burns, (1894) 77 Hun 92, 28 N. Y. S. 300, affirmed, (1894) 143 N. Y. 665, 39 N. E. 21; Matter of Whalen, (1892) 65 Hun 69, mem., 19 N. Y. S. 915. Thus, the governor may grant a commutation upon the express condition that the prisoner shall totally abstain from the use of intoxicating liquors for five years from the date thereof, and in case of a violation of the condition the prisoner shall be compelled to serve in the state prison the portion of his term remaining unserved, and the violation by the prisoner of such condition deprives the commutation of all force and effect, and restores to the original sentence the same force and effect as if the commutation had not been granted. People v. Burns, (1894) 77 Hun 92, 28 N. Y. S. 300, affirmed (1894) 143 N. Y. 665, 39 N. E. 21. Apparently, the governor's discretionary power in this respect cannot be limited, and a statute declaring that certain conditions shall be attached to commutations is not compulsory on him. Matter of Whalen, (1892) 65 Hun 619, mem., 19 N. Y. S. 915.

Power of governor under impeachment to pardon.— Section 6 of this article provides that when the governor is impeached, his functions shall devolve upon the lieutenant-governor. Accordingly, a governor against whom articles of impeachment have been preferred by the assembly is not competent during the hearing of those charges to issue pardons, the power to pardon together with the other powers of the governor devolving, on his impeachment, upon the lieutenant-governor. People v. Hayes, (1914) 163 App. Div. 725, 149 N. Y. S. 250.

Grant to court of power to suspend sentences as invasion of governor's prerogatives. The power here vested in the governor to grant reprieves, pardons, and commutations, does not comprehend any part of the judicial function to suspend sentence and does not in any manner restrict the exercise of that function by the judiciary. Accordingly, a statute (ch. 279, Laws 1893, amending § 12 of the Penal Code) authorizing courts of criminal jurisdiction to suspend sentence in certain cases after conviction is not void as an invasion of the governor's powers under this section. "There can be no doubt that if the amendment distributes any part of the pardoning power conferred upon the executive to some other department of the government, the legislation is in conflict with the constitution and invalid. The power to suspend sentence and the power to grant reprieves and pardons, as understood when the constitution was adopted, are totally distinct and different in their origin and nature. The former was always a part of the judicial power. The latter was always a part of the executive power. The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and all civil disabilities, remain and become operative when judgment is rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. It removes the penalties and disabilities and restores him to all his civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity." People v. Court of Sessions, (1894) 141 N. Y. 288, 36 N. E. 386, 23 L. R. A. 856, reversing 66 Hun 550, 21 N. Y. S. 659.

Consideration by Court of Appeals of appeal for clemency. The fact that there are circumstances in a case which tend to lessen the moral guilt of a defendant cannot be taken into consideration by the Court of Appeals. Such

Art. IV,

8 5

Governor and Lieutenant-Governor

facts and circumstances must be submitted, on an appeal for clemency, to the governor of the state, in whom, under this section, the whole power is vested. People v. Broncado, (1907) 188 N. Y. 150, 80 N. E. 935. In that case the court said: "We fully appreciate that there are circumstances in this case, such as the failure of the defendant to use his weapon at the beginning of the altercation, and the fact that the deceased was the aggressor in the final struggle which resulted in the fatal shot, while not controlling the legal character of the defendant's crime, tend to diminish his moral fault, and, on appeal for clemency, it may be, should relieve him from suffering the extreme penalty of the law. With these considerations we cannot deal. They must be submitted to the governor of the state, to whose judgment under the constitution and the law the whole subject is confided, and from whom they will doubtless receive due weight."

Imposition of indeterminate sentence.― Statutes authorizing the imposition of a sentence of imprisonment for an indeterminate term and making provision for the release by the prison authorities of a prisoner so sentenced before the expiration of the maximum term for which he might be impris oned under the sentence, do not trench on the prerogative of the governor to grant pardons. People v. Adams, (1903) 176 N. Y. 351, 68 N. E. 636, 98 A. S. R. 675, 63 L. R. A. 406, affirming 85 App. Div. 390, 83 N. Y. S. 481; People v. Madden, (1907) 120 App. Div. 338, 105 N. Y. S. 554; People v. Fox, (1902) 77 App. Div. 245, 79 N. Y. S. 56.

Effect of pardon on judgment and past punishment.— A pardon proceeds on the theory of guilt and affects a sentence only to relieve the one pardoned from future or further punishment. It has no retroactive effect upon the judgment of conviction and does not render illegal or improper punishment inflicted prior to its grant. Thus, under chapter 342, Laws of 1895, authorizing board of claims to award to a certain person, who had been pardoned after serving a portion of a sentence of imprisonment, just compensation for damages suffered by him from his "improper" conviction and incarceration, it was the duty of the board to dismiss a claim made by such person when it appeared that his imprisonment had been under a judgment of conviction which had not been reversed. The imprisonment was not improper but was legal, being made in accordance with law. Roberts v. State, (1899) 160 N. Y. 217, 54 N. E. 678, affirming 30 App. Div. 106, 51 N. Y. S. 691.

66

II. COMMUTATION AND Reprieve.

Meaning of commutation.— Under his power to commute sentence the governor may change a greater punishment to a less punishment, of which both are known to the law." He is not required in commuting any sentence to prescribe the same kind and degree of punishment as that commuted. Accordingly, he may commute a sentence of death to life imprisonment though the latter punishment is not precisely of the same nature as the former. People v. Frost, (1909) 133 App. Div. 179, 117 N. Y. S. 524.

Test of commutation.— Whether the action of the governor in altering a sentence amounts to an increase in its severity or to a commutation is determined by the general law of the state and not by the individual preference of any convict. Accordingly, the alteration of a sentence of death to one of life imprisonment is a commutation though it be not so regarded by the criminal affected, death being the highest penalty under the scheme of punishment of this state. People v. Frost, (1909) 133 App. Div. 179, 117 N. Y. S. 524.

Necessity of consent of convict to commutation.— A commutation, being an act of grace and not a matter of right or contract, does not depend for effectiveness in any manner on its acceptance by the convict affected. People v. Frost, (1909) 133 App. Div. 179, 117 N. Y. S. 524.

Governor and Lieutenant-Governor

Art. IV, §§ 6, 7

Meaning of reprieve.— “ Blackstone (4 Com. 394) defines a reprieve to mean 'the withdrawing of a sentence for an interval of time whereby the execution is suspended.' It operates in capital cases only.

The dis

tinction between a reprieve and a suspension of sentence, although the words are sometimes used interchangeably, is that a reprieve postpones the execu tion of the sentence to a day certain, whereas a suspension is for an indefinite time." In re Buchanan, (1895) 146 N. Y. 264, 40 N. E. 883.

Necessity of re-sentence after reprieve before execution of punishment.—“A reprieve by the governor to a day certain, granted in a capital case, authorizes the execution of sentence on the day on which the reprieve terminates, and . . . it is not necessary that the prisoner should be brought before the court to have the time of execution fixed. . . . The right to execute the sentence on that day inheres in the power to fix the day to which the reprieve shall extend. If, in case of a reprieve, a re-sentence is necessary, the reprieve is not to a fixed day, but to some indefinite day to be fixed by the court after the day named in the reprieve is passed." In re Buchanan, (1895) 146 N. Y. 264, 40 N. E. 883.

§ 6. When lieutenant-governor to act as governor.

When governor continues as commander-in-chief though out of state.

In case of the impeachment of the Governor, or his removal from office, death, inability to discharge the powers and duties of the said office, resignation, or absence from the State, the powers and duties of the office shall devolve upon the Lieutenant-Governor for the residue of the term, or until the disability shall cease. But when the Governor shall, with the consent of the Legislature, be out of the State, in time of war, at the head of a military force thereof, he shall continue Commander-in-Chief of all the military force of the State.

Const. 1777, Art. XX; amended, Const. 1821, Art. III, § 6; amended, Const. 1846, Art. IV, § 6.

Meaning of "impeachment.” - "By section 13 of article 6 of the constitution the word 'impeachment' seems to be defined as the act of the Assembly in presenting by a majority vote articles of impeachment to be tried by the court for the Trial of Impeachments to be thereafter formed.” Per Woodward, J., in People v. Hayes, (1914) 163 App. Div. 725, 149 N. Y. S. 250. Power of governor under impeachment to pardon.- A governor against whom articles of impeachment have been preferred by the assembly is not competent during the pendency of the charges made to exercise the power to issue pardons vested in him by section 5 of this article. On his impeachment, his power to pardon devolves upon the lieutenant-governor by force of this section. People v. Hayes, (1914) 163 App. Div. 725, 149 N. Y. S. 250.

§ 7. Lieutenant-governor; qualifications.

President of senate.

Succession to office of governor.

The Lieutenant-Governor shall possess the same qualifications of eligibility for office as the Governor. He shall be President of the