People v. Bynul

• Decision Date: 02 July 1987
• Docket Number: AP-1
• Citation: 138 Misc.2d 326,524 N.Y.S.2d 321
• Parties: The PEOPLE of the State of New York v. John BYNUL, Defendant
• Court: New York City Court

Page 321

524 N.Y.S.2d 321

138 Misc.2d 326

The PEOPLE of the State of New York v. John BYNUL, Defendant.

Criminal Court of the City of New York,

New York County, Part AP-1.

July 2, 1987.

Robert M. Morgenthau, Dist. Atty. (John Marqueze, of counsel), New York City, for the People.

Ceasar Cirigliano, The Legal Aid Soc. (Michael McLaughlin, of counsel), New York City, for defendant.

JO ANN FERDINAND, Judge:

On April 5, 1987, the defendant was arraigned on a fugitive affidavit which alleged he had fled from the state of New Jersey where he was wanted for a violation of probation. Defendant did not waive extradition; he was remanded and the case was adjourned for the District Attorney to obtain a governor's warrant as required by CPL § 570.08.

The People now request that this court issue an order directing the defendant's immediate surrender to New Jersey, in accordance with the Uniform Act for Out-of-State Parolee Supervision (N.Y. Executive Law § 259-m), without the necessity of obtaining a governor's warrant.

The issue is whether defendant must be returned to New Jersey, even in the absence of a waiver of extradition, and without a governor's warrant. Research reveals no New York case directly addressing this question.

The defendant was convicted in New Jersey Superior Court and sentenced to four years probation on August 4, 1981. That court permitted the defendant to serve his probation in New York State pursuant to the Uniform Act for Out-of-State Parolee Supervision (N.Y. Executive Law § 259-m and NJSA 2A:168-14 et seq ).

The People contend that as a condition of that arrangement the defendant executed an "Agreement to Return" whereby he agreed to return to New Jersey when instructed to do so, to waive extradition to New Jersey, and not to contest any effort made by another state to return him to New Jersey. Subsequently, according to the Middlesex County Probation Department, the defendant violated his probation and a bench warrant was issued for his arrest on December 7, 1983, after defendant failed to appear in court. New Jersey now seeks defendant's immediate return to answer these charges.

The defendant initially refused to waive extradition because he claimed his probation had been terminated by a New York court and he believed New Jersey therefore had no basis to demand his return. The defendant now states he does not remember having been informed of his rights in respect of a waiver of extradition, does not remember having a lawyer present, and does not remember signing the "Agreement to Return." Moreover, he asserts the waiver was not executed before a court. For these reasons he contends the waiver was not knowing or voluntary and should

not be the basis for his return to New Jersey.

DISCUSSION

The procedures for returning a fugitive to a demanding state (here New Jersey) are set forth in the Uniform Criminal Extradition Act (N.Y. CPL Article 570). Under the terms of that act, a fugitive may waive all procedural rights incidental to the extradition (i.e., the issuance of a governor's warrant, CPL § 570.08) and thereby consent to return to the demanding state (CPL § 570.50). Both the People and the defendant refer to defendant's signature on the "Agreement to Return" and discuss whether or not it should be considered a valid waiver of extradition contemplated by CPL § 570.50. Such waivers, signed as a condition of probation or parole, have been found valid by courts of both New York and New Jersey (See e.g., People v. Corder, 132 Misc.2d 444, 503 N.Y.S.2d 955 State v. Maglio, 189 N.J.Super. 257, 459 A.2d 1209 ).

The waiver provisions of CPL Article 570 provide that a fugitive may agree to dispense with the formal extradition procedures of the statute if such waiver is made in writing, in the presence of a judge, and if the judge has informed the fugitive of his rights under the statute. However, that section also provides,

... nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this state. (CPL § 570.50)

This language has been interpreted to mean that the statutory procedures of CPL § 570.50 are not exclusive and that waivers of extradition need not conform to the procedures set forth in the Uniform Criminal Extradition Act. People v. Corder, supra; Ex parte Johnson, 610 S.W.2d 757 (Tex.Cr.App.1981); State v. Maglio, supra; White v. Hall, 15 Md.App. 446, 291 A.2d 694 (Ct.Spec.App.1972); Schwartz v. Woodahl, 157 Mont. 479, 487 P.2d 300 (Sup.Ct.1971); Pierson v. Grant, 527 F.2d 161 (8th Cir.1975).

The case cited by defendant to the contrary, In re Patterson, 64 Cal.2d 357, 49 Cal.Rptr. 801, 411 P.2d 897 (Sup.Ct.Calif.1966), is not persuasive. The courts of California have held that a waiver of extradition must comply with all the procedural formalities of the Uniform Criminal Extradition Act; and California alone among the states declines to enforce waivers of extradition signed as a condition of parole. However, even California recognizes that an alternative procedure exists under the Uniform Act for Out-of-State Parolee Supervision by which a person can be returned to the demanding state without complying with the formalities of the Uniform Criminal Extradition Act. See In re Klock, 184 Cal.Rptr. 234, 133 Cal.App.3d 726 (1982).

Both New York and New Jersey have adopted the Uniform Act for Out-of-State Parolee Supervision (hereinafter the "Interstate Compact"). This statute displaces the Uniform Criminal Extradition Act and provides an alternative procedure, with only minimal formalities, for the return of certain probationers to the demanding state. The Interstate Compact permits a person convicted and sentenced to probation in one state to reside and be supervised by a probation department in another state. The sentencing state retains the authority to decide whether to retake the probationer and all issues...