People ex rel. Schank v. Gerace

• Citation: 661 N.Y.S.2d 403,231 A.D.2d 380
• Parties: PEOPLE of the State of New York ex rel. William N. SCHANK, Respondent, v. Joseph GERACE, Chautauqua County Sheriff, Appellant.
• Decision Date: 03 July 1997
• Court: New York Supreme Court — Appellate Division

Page 403

661 N.Y.S.2d 403

231 A.D.2d 380

PEOPLE of the State of New York ex rel. William N. SCHANK, Respondent, v. Joseph GERACE, Chautauqua County Sheriff, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

July 3, 1997.

James P. Subjack, Mayville, for appellant.

David Jay, Buffalo, for respondent.

Before DENMAN, P.J., GREEN, DOERR, BALIO and FALLON, JJ.

DENMAN, Presiding Justice.

Relator, William N. Schank, commenced this proceeding pursuant to CPLR article 70 to test the legality of his detention pursuant to an extradition warrant signed by the Governor of this State, and to prevent his extradition to Alabama to serve a sentence of life imprisonment imposed on a 1975 conviction for murder. This is the fifth extradition request concerning relator and the fifth habeas corpus proceeding commenced by him in the 15 years since he was mistakenly released by Alabama prison authorities.

Respondent, the Chautauqua County Sheriff, appeals from a judgment of Supreme Court, which, like the four previous judgments of Chautauqua County Court, granted the habeas corpus petition and discharged relator from detention. Supreme Court held that County Court's determinations in the four prior extradition/habeas corpus proceedings were res judicata with respect to the instant proceeding. On appeal, respondent contends that res judicata generally does not apply to extradition proceedings and, given the particular circumstances, does not bar the instant extradition request.

We conclude that res judicata does not bar the instant extradition request. The essential identity of issue is lacking because this proceeding involves a new issue concerning the legality of relator's detention pursuant to new process issued since the prior determinations were rendered. Further, respondent has thus far been deprived of a full and fair opportunity to litigate the determinative issue of relator's fugitive status as a result of County Court's focus on immaterial issues.

BACKGROUND

In June 1975 relator was convicted in Alabama of first degree murder arising out of the fatal beating of a one-year-old girl and was sentenced to life imprisonment on that conviction. At the time, relator was serving a sentence imposed on an Alabama conviction for burglary. In October 1975 relator was convicted in Alabama of several counts of burglary and sentenced to 20 years imprisonment.

Despite being under a life sentence, relator was released by the Alabama Department of Corrections on August 21, 1982 at the expiration of his sentence on the 1975 burglary conviction, taking into account "Inc[entive] Good Time." Relator asserts that Alabama officials released him according to law and with awareness of the murder conviction and life sentence, which relator claims he had completed. The record establishes, however, that relator was released as a result of administrative error, viz., the Alabama court's failure to send the transcript of the murder conviction to the Alabama Board of Corrections until August 24, 1982, three days after relator's release. Upon discovering the mistake, Alabama immediately sought relator's extradition from New York, where relator has lived since his release.

THE LAW GOVERNING EXTRADITION OF FUGITIVES

Article IV (2, cl. [2] ) of the U.S. Constitution provides:

"A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime."

The purpose of the Extradition Clause is to enable each State to bring offenders to quick justice by effectively erasing State borders so as to enlarge the territory within which the demanding State may make a lawful arrest, and to preclude any State from becoming a sanctuary for fugitives from the justice of another State (Michigan v. Doran, 439 U.S. 282, 287, 99 S.Ct. 530, 534, 58 L.Ed.2d 521; Biddinger v. Commissioner of Police, 245 U.S. 128, 132-133, 38 S.Ct. 41, 42-43, 62 L.Ed. 193). The constitutional provision is not self-executing, but is implemented by 18 U.S.C. § 3182, which provides:

"Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear."

Extradition of fugitives is not a matter of comity among the States, but is the absolute right of the demanding State and the absolute obligation of the rendering or asylum State (see, Puerto Rico v. Branstad, 483 U.S. 219, 226-228, 107 S.Ct. 2802, 2807-2808, 97 L.Ed.2d 187; Appleyard v. Massachusetts, 203 U.S. 222, 227-228, 27 S.Ct. 122, 123-124, 51 L.Ed. 161). Federal law governs extradition, and State regulation merely supplements it (Michigan v. Doran, supra, at 288, 99 S.Ct. at 534-535; Innes v. Tobin, 240 U.S. 127, 131, 36 S.Ct. 290, 291, 60 L.Ed. 562 (1916)). Asylum States may not impose extradition requirements more stringent than those imposed by Federal law (see, People ex rel. Matochik v. Baker, 306 N.Y. 32, 36-37, 114 N.E.2d 194). Federal law is implemented by State procedural law, particularly the Uniform Criminal Extradition Act, which New York has adopted as CPL article 570.

CPL 570.06, entitled "Fugitives from justice; duty of governor", provides:

"Subject to the provisions of this article, the provisions of the constitution of the United States controlling, and any and all acts of congress enacted in pursuance thereof, it is the duty of the governor of this state to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state."

CPL 570.08, entitled "Demand; form", provides in pertinent part:

"No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state * * * and accompanied by a copy of an indictment found or by information supported by an affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon, or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of the indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand"

(see also, CPL 570.32).

Pursuant to CPL 570.10, 570.18, and 570.20, the Governor of the rendering State must review the extradition demand and, upon determining that it should be complied with, must issue a warrant directing that the accused be arrested and delivered to agents of the demanding State. In that event, the arrestee has the right, pursuant to CPL 570.24, to be taken before the court and to apply for a writ of habeas corpus. In such circumstances,

"A governor's grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met * * * Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive"

(Michigan v. Doran, supra, at 289, 99 S.Ct. at 535-536; see, People ex rel. Strachan v. Colon, 77 N.Y.2d 499, 502, 568 N.Y.S.2d 895, 571 N.E.2d 65).

Apart from the issues of the identity of the relator as the person charged and his presence in the demanding State at the time of the crime, the asylum State court may not inquire into the relator's guilt or innocence of the crime charged (see, CPL 570.46), but may determine only the legal question whether the demand for extradition is accompanied by a charge that, however inartfully, alleges commission of some crime in the demanding State (see, California v. Superior Ct. of Cal., 482 U.S. 400, 410-411, 107 S.Ct. 2433, 2439-2440, 96 L.Ed.2d 332; Appleyard v. Massachusetts, supra, at 227, 27 S.Ct. at 123-124). All other questions of guilt or innocence and the proper interpretation of the demanding State's substantive and procedural criminal law, including the technical sufficiency of the charges, are for the courts of the demanding State to determine (see, California v Superior Ct. of Cal., supra, at 407-412, 107 S.Ct. at 2438-2441; Biddinger v. Commissioner of Police, supra, at 135, 38 S.Ct. at 43; People ex rel. Higley v. Millspaw, 281 N.Y. 441, 445, 24 N.E.2d 117; see also, CPL 570.46).

In determining whether the relator...