People ex rel. Eiseman v. Sheriff of Oneida County

• Court: New York County Court
• Writing for the Court: JOHN J. WALSH
• Citation: People ex rel. Eiseman v. Sheriff of Oneida County, 285 N.Y.S.2d 950, 55 Misc.2d 685 (N.Y. Cty. Ct. 1967)
• Decision Date: 29 December 1967
• Parties: The PEOPLE of the State of New York ex rel. Ronald Douglas EISEMAN, Petitioner, v. The SHERIFF OF ONEIDA COUNTY, New York, Respondent.

Page 950

285 N.Y.S.2d 950

55 Misc.2d 685

The PEOPLE of the State of New York ex rel. Ronald Douglas EISEMAN, Petitioner, v. The SHERIFF OF ONEIDA COUNTY, New York, Respondent.

Oneida County Court.

Dec. 29, 1967.

Arthur A. Darrigrand, Dist. Atty., for respondent.

Donald L. Austin, Public Defender, Francis P. Finnegan, Utica, of counsel), for petitioner.

JOHN J. WALSH, Judge.

The State of Michigan seeks to extradite the petitioner for the alleged crime of indecent liberties with a minor child which appears to be a felony under the laws of the state of Michigan (§ 28.568 Penal Code), Comp.Laws Mich.1948, § 750.336 (P.A.1954, No. 51).

He is presently confined in the Oneida County Law Enforcement Building by the Sheriff of this county under a warrant issued by the Acting Governor of the State of New York. He has been duly arraigned as a fugitive from justice and has petitioned for a writ of habeas corpus.

The petitioner challenges the sufficiency of the papers upon which the demand of Michigan is based and the sufficiency of the papers upon which the Acting Governor of New York issued the warrant of arrest.

By agreement of counsel, the issues of law relating to the sufficiency of the papers is submitted to this court before the taking of any testimony on issues of fact relating to his alleged presence in Michigan, whether he is the person sought, and whether he is a fugitive from justice.

Whatever doubt as to the scope of habeas corpus in an extradition proceeding may have existed, People ex rel. Higley v. Millspaw, 281 N.Y. 441, 445, 24 N.E.2d 117, 119, makes clear that whether the papers upon which the warrant was issued by New York are sufficient; whether the complaint or affidavit charges a crime and whether a crime was actually committed in and under the laws of the demanding state are proper subjects for scrutiny by the courts of this state.

The Michigan Papers

(a) The petitioner contends that the papers upon which Michigan proceeded to demand extradition are not in proper form since they are based not on an indictment by a grand jury nor an affidavit before a magistrate but upon a criminal complaint and a criminal warrant.

The federal statute regulating extradition procedure (18 U.S.C. § 3182) provides that a demand for interstate extradition must be accompanied by a duly certified copy of an indictment found or an Affidavit before a magistrate charging the accused with having committed some crime. 'It does not purport, expressly or impliedly, to prohibit a State from extraditing on less exacting terms.' People ex rel. Matochik v. Baker, 306 N.Y. 32, 37, 114 N.E.2d 194, 197.

Thus, in New York State, an 'information supported by affidavit' is recognized as a proper basis for a demand. Section 830 Code of Criminal Procedure. People ex rel. MacSherry v. Enright, 112 Misc. 568, 184 N.Y.S. 248, aff'd 196 App.Div. 964, 188 N.Y.S. 945; People ex rel. Hollander v. Britt, 195 Misc. 722, 92 N.Y.S.2d 662, aff'd 276 App.Div. 815, 93 N.Y.S.2d 704 (4th Dept.). The same rule is followed in the state of Michigan. People v. Stockwell, 135 Mich. 341, 97 N.W. 765.

'It appears that the writ of requisition in the present case was not based upon an indictment * * * in the state of Michigan, but upon a complaint made under oath before a magistrate having jurisdiction in such cases. Such a complaint made under oath is sufficient to justify the issuance of a requisition. In re Strauss, 197 U.S. 324, 25 S.Ct. 535, 49 L.Ed. 774.' Riley v. Colpoys, 66 App.D.C. 116, 85 F.2d 282, 283.

While an indictment in the demanding state will be accepted on its face as sufficient by the courts of this state (Hogan v. O'Neill, 255 U.S. 52, 41 S.Ct. 222, 65 L.Ed. 497), where the extradition is sought on the basis of an affidavit or complaint which in turn is made upon information and belief, there is understandably a requirement for closer scrutiny. Due process demands that a person not be arrested on the mere belief of a person that a crime has been committed by him. New York has held that where extradition is demanded based upon an affidavit or complaint on information and belief without specification of the sources of the information or the grounds of belief, it is defective and extradition should not follow. People ex rel. De Martini v. McLaughlin, 243 N.Y. 417, 419, 153 N.E. 853, 854.

(b) The second contention of the petitioner is that the demand is based upon a criminal complaint which on its face states that it is upon information and belief. He cites People v. Heffron (1884), 53 Mich. 527, 530, 19 N.W. 170, 171, wherein the Michigan court held that, 'the complaint must set up the facts constituting the offence on the Knowledge of the person making the complaint, and if he does not know them, other witnesses must be examined who do know them; and no person can be arrested on the mere belief of the person making the complaint.'

This court has before it a certified copy of the complete file in 'The Matter of the Extradition of Donald Douglas Eiseman, a Fugitive from the County of Saginaw, Michigan' from the Secretary of State of Michigan.

The 'criminal complaint' is by Sgt. Edward Chmielewski, Saginaw Police Department 'on information & belief' made before Hon. William Glover Gage, a Municipal Judge of the city of Saginaw on January 10, 1967.

The 'criminal warrant' signed by the Municipal Judge of Saginaw recites that it is issued after the making of the complaint and 'on examination, on oath, of the said Sgt. Edward Chmielewski, Saginaw Police Dept. by me, the said Municipal Judge' and after a finding 'that said offense has been committed, and there is just cause to suspect the said Ronald Douglas Eiseman to have been guilty thereof'.

There is attached to the papers, a stenographic transcript of a statement made by the complaining witness, a minor child, to the police department on January 9, 1967 which sets forth facts which if true constitute a violation of the laws of Michigan, together with a statement of a corroborating witness. Whether these papers were before the Municipal Judge or whether such judge examined such witnesses is not known but it must be presumed that there was a regularity of procedure in the Michigan courts.

The sources of the information and the grounds of belief are sufficiently clear to satisfy this court that the criminal complaint in this case is based upon more than mere suspicion and is in accordance with due process.

(c) Since the petitioner challenges the sufficiency of the Michigan papers upon the basis of a typographical error which will hereafter appear, this court has examined the complete file from Michigan.

The extradition procedure in Michigan is outlined in the Code of Criminal Procedure (§ 28.1285(22) Comp.Laws Mich.1948, § 780.22):

'1. When the return to this state of a person charged with crime in this state is required, the prosecuting attorney shall present to the governor his written application for a requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against him, the approximate time, place and circumstances of its commission, the state in which he is believed to be, including the location of the accused therein, at the time the application is made and certifying that, in the opinion of the said prosecuting attorney the ends of justice require the arrest and return of the accused to this state for trial and that the proceeding is not instituted to enforce a private...