Jones v. People

• Decision Date: 19 April 1978
• Citation: 94 Misc.2d 304,404 N.Y.S.2d 525
• Parties: Brenda JONES a/k/a Brenda Patton a/k/a Etta L. Neal a/k/a Jean Harris a/k/a Louise Neal a/k/a Etta Collins, Petitioner, v. The PEOPLE of the State of New York, Respondent.
• Court: New York County Court

Page 525

404 N.Y.S.2d 525

94 Misc.2d 304

Brenda JONES a/k/a Brenda Patton a/k/a Etta L. Neal a/k/a Jean Harris a/k/a Louise Neal a/k/a Etta Collins, Petitioner, v. The PEOPLE of the State of New York, Respondent.

County Court, Rockland County.

April 19, 1978.

Stone, Getz & Israel by Michael A. Stone, New York City, for petitioner.

Kenneth Gribetz, Dist. Atty. by Mark A. Posner, Asst. Dist. Atty., for respondent.

DECISION AND ORDER

HARRY EDELSTEIN, Judge:

The petitioner brings a habeas corpus proceeding to vacate a warrant issued by the Governor of the State of New York on the ground that it was not issued within the 90-day statutory period from the time of her original arrest.

The petitioner had been arrested in the City of New York on July 16, 1975, for the alleged commission of grand larceny and possession of a hypodermic instrument. She had pleaded guilty to unauthorized use and was sentenced to $250.00 or 30 days in the City Jail. On August 30, 1975, a fugitive warrant was lodged against her in New York County. She was released on $1,000 bail and was to return to Court on September 4, 1975. She failed to appear and a bench warrant was issued. On or about September 15, 1977, she was re-arrested on the fugitive warrant and remanded. The Court records indicated that the State of Missouri authorities should be notified (petitioner's exhibit 2). On September 16, 1977, she was placed on $1,000 bail, appeared again in Court on September 21, 1977, and October 18, 1977. The Court again recommended that the correspondence unit notify the State of Missouri to proceed with the Governor's warrant. Finally, when nothing was done on November 29, 1977, the case against the petitioner was dismissed since no Governor's warrant was received.

On or about December 15, 1977, she was again arrested in the Town of Clarkstown, Rockland County, New York, on a number of misdemeanor counts of petty larceny and Criminal possession of stolen property third degree. On December 16, 1977, a fugitive warrant was again lodged against the petitioner in the Town of Clarkstown. She was arrested on all charges and released on $1,000 bail on January 3, 1978.

The Governor of the State of New York issued his warrant on February 1, 1978, to the Sheriff of Rockland County, New City, New York, directing him to arrest and secure the accused and to see that she is delivered to agents of the State of Missouri at the request of the Governor.

The Criminal Procedure Law, Section 570.36 mandates a local criminal court "by a warrant reciting the accusation" to commit the "fugitive" to the County Jail for a period of not exceeding 30 days. The purpose is to permit the arrest of the accused "under a warrant of the governor on a requisition of the executive authorities of the state having jurisdiction of the offense . . .".

CPL § 570.40 permits the local criminal court to discharge the fugitive from custody or bond or to recommit him for a further period of 60 days, "if the accused is not arrested under warrant of the governor".

These two sections set a 90 day time limit within which the Governor of Missouri must require the Governor of New York to deliver the "fugitive" to officers from Missouri. It is apparent that this 90 day limit would be the maximum time that the fugitive could be detained or held on bail. At the end of the 90 days, if no extradition proceeding has been instituted, the accused still remains a "fugitive" and is not immunized from extradition in the future. People v. Williams, 89 Misc.2d 269, 391 N.Y.S.2d 518, (Crim.Ct.N.Y.C., 1977).

In the Williams case, the Court cites People ex rel. Green v. Nenna, 53 Misc.2d 525, 279 N.Y.S.2d 324, aff'd 24 A.D.2d 936, 264 N.Y.S.2d 211; aff'd 17 N.Y.2d 815, 271 N.Y.S.2d 267, 218 N.E.2d 311. Counsel raised a parallel issue, i. e. , that the Court had lost jurisdiction because the 90 day limit had long expired.

Mr. Justice Davidson in Green (53 Misc.2d 525, 526-627, 279 N.Y.S.2d 324, 325 supra ) stated:

"Relator urges that by reason of his detention beyond 90 days set forth in the statute, supra, the court has lost jurisdiction of his person. There is no authority for this contention. While it is true that any time beyond the 90 days afore-mentioned and prior to the Governor's mandate, the relator could have demanded his release. Nevertheless, at any time, upon receipt of the mandate, it is the court's obligation to turn him over to the agents of the demanding State.

"The relator is...