People ex rel. Cooper v. Lombard

• Decision Date: 05 July 1974
• Parties: PEOPLE of the State of New York ex rel. Johnson COOPER, Appellant, v. WILLIAM M. LOMBARD, Sheriff, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 323

357 N.Y.S.2d 323

45 A.D.2d 928

PEOPLE of the State of New York ex rel. Johnson COOPER, Appellant, v. WILLIAM M. LOMBARD, Sheriff, Respondent.

Supreme Court, Appellate Division, Fourth Department.

July 5, 1974.

Peter L. Yellin, Public Defender, Leslie A. Bradshaw, Rochester, for appellant.

Jack B. Lazarus, Dist. Atty., Edward J. Spires, Rochester, for respondent.

Before WITMER, J.P., and CARDAMONE, SIMONS, MAHONEY and GOLDMAN, JJ.

MEMORANDUM:

Relator appeals from the judgment dismissing his writ of habeas corpus in this extradition proceeding wherein it appears that each of the two warrants of arrest issued by the Magistrate (on September 15, 1973 and September 20, 1973) in the demanding State rests upon an affidavit. The affidavit in support of one warrant was expressly made on information and belief and was conclusory in form and without statement of supporting facts. The affidavit in support of the other warrant was also conclusory in form, without statement of supporting facts and it did not identify the affiant's relationship to the crime. Neither showed the existence of probable cause to arrest the relator. That deficiency is the sole basis of relator's contention that the extradition papers are insufficient. Prior to decisions of the United States Supreme Court which made the Fourth and Fourteenth Amendments of the United States Constitution applicable to the several States (see, Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782), the courts of New York in an extradition proceeding did not inquire as to whether probable cause for arrest was shown in the papers supporting a warrant of arrest from a demanding State (see, People ex rel. Higley v. Millspaw, 281 N.Y. 441, 445, 24 N.E.2d 117, 120; People ex rel. Gellis v. Sheriff, 251 N.Y. 33, 37--38, 166 N.E. 795, 796). The inquiry was made as to the identity of the relator and whether or not he was in the demanding State at the time of the crime involved. In Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670, the court held that since extradition deprives a relator of his liberty for the purpose of insuring his presence in the demanding State at a criminal trial, the papers in support of the warrant of arrest must show that probable cause exists for relator's arrest. This holding has been adopted in several cases by the Second Department of this State (People v. Artis, 32 A.D.2d 554,...