People ex rel. Kotch on Behalf of Russo v. District Attorney, Kings County

• Decision Date: 19 February 1991
• Citation: 566 N.Y.S.2d 404,170 A.D.2d 632
• Parties: The PEOPLE, etc., ex rel. Paul KOTCH, on Behalf of Philip RUSSO, Appellant, v. DISTRICT ATTORNEY, KINGS COUNTY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 404

566 N.Y.S.2d 404

170 A.D.2d 632

The PEOPLE, etc., ex rel. Paul KOTCH, on Behalf of Philip RUSSO, Appellant, v. DISTRICT ATTORNEY, KINGS COUNTY, Respondent.

Supreme Court, Appellate Division Second Department.

Feb. 19, 1991.

Salvatore S. Russo, Brooklyn, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Peter A. Weinstein and Jane W. Sutley, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, SULLIVAN and MILLER, JJ.

MEMORANDUM BY THE COURT.

In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Kings County (Douglass, J.), dated May 11, 1990, which, denied the writ and remanded Philip Russo to the custody of Florida law enforcement officials.

ORDERED that the judgment is affirmed, without costs or disbursements.

The petitioner Philip Russo was arrested on a warrant issued by the Governor of New York pursuant to a demand for extradition by the Governor of the State of Florida. The petitioner was charged in Florida with having committed the crime of sexual battery upon a child in violation of Florida Statutes Annotated § 794.011(2). The petitioner then commenced this habeas corpus proceeding contending that the extradition warrant was invalid because the documents supporting the extradition demand were not sufficient to comply with the requirements of CPL 570.08. The Supreme Court denied the petition, but stayed execution of the warrant to enable the petitioner to appeal.

On this appeal, the petitioner argues that the Florida Information charging him with a crime is based upon an affidavit of the investigating officer in Broward County, Florida, who relied upon the unsworn testimony of the infant victim. The petitioner challenges the supporting affidavit because it erroneously alleges that it is based on a sworn statement of the infant victim. Thus, the petitioner argues that without some demonstration of the trustworthiness of the infant victim's statements, the extradition warrant was issued without probable cause.

Upon our review of the documents submitted by the Governor of Florida in support of his request for extradition, we agree with the Supreme Court that extradition was properly granted and, therefore, no basis existed to sustain the writ of habeas corpus and to vacate the warrant. To effectuate the purpose of the Extradition Clause of the Federal Constitution (see, U.S. Const. art. IV, § 2, cl. 2) and the New York statutes implementing it (see, CPL 570, et seq.) in ensuring the prompt return of a fugitive as soon as the state from which he fled appropriately demands his return (see, People ex rel. Little v. Ciuros, 44 N.Y.2d 825, 826, 406 N.Y.S.2d 449, 377 N.E.2d 980; People ex rel. Kokell v. Dooley, 158 A.D.2d 568, 551 N.Y.S.2d 335; see, Bellacosa, Practice Commentary, McKinney's Cons.Laws of NY, Book 11A, CPL 570.02), extradition proceedings are summary in nature and the statutory provisions are to be liberally construed (see, Michigan v. Doran, 439 U.S. 282, 288, 99 S.Ct. 530, 534, 58 L.Ed.2d 521; People ex rel. Ingram v. Bound, 58 A.D.2d 961, 397 N.Y.S.2d 189; People ex rel. Semexant v. Warden of Corrections of City of N.Y., Brooklyn House of Detention, 133 Misc.2d 202, 203, 506 N.Y.S.2d 812). The courts of the asylum states are limited in their scope of inquiry to determining: (1) whether the extradition documents are facially sufficient, (2) whether the petitioner has been charged with a crime in the demanding state, (3) whether the petitioner is the person named in the extradition request, and (4) whether the petitioner is a fugitive from the demanding state (see, Michigan v. Doran, supra, 439 U.S. at 289, 99 S.Ct. at 535; California v. Superior Ct. of Cal., 482 U.S. 400, 408, 107 S.Ct. 2433, 2438, 96 L.Ed.2d 332; People ex rel. Kokell v. Dooley, supra ). Moreover, in order to ensure the expeditious processing of an extradition request, the courts may, within due process constraints, relax formal evidentiary requirements applicable to criminal trials (see, United States ex rel. Vitiello v. Flood, 2 Cir., 374 F.2d 554, 557-558; People ex rel. Semexant v. Warden of Corrections of City of N.Y., Brooklyn House of Detention, supra ). Thus, hearsay evidence may be admissible (see, Bingham v. Bradley, 241 U.S. 511, 517, 36 S.Ct. 634, 637, 60 L.Ed. 1136; People ex rel. Rudin v. Ward, 112 Misc.2d 62, 69-70, 445 N.Y.S.2d 1002) and, indeed, the affidavit used to support extradition may be based upon hearsay (see, United States ex rel....