People v. Liebowitz

• Decision Date: 13 July 1988
• Parties: PEOPLE of the State of New York v. Stuart E. LIEBOWITZ, Defendant.
• Court: New York County Court

Page 719

531 N.Y.S.2d 719

140 Misc.2d 820

PEOPLE of the State of New York v. Stuart E. LIEBOWITZ, Defendant.

Nassau County Court, Criminal Term Part III.

July 13, 1988.

Robert Abrams, Atty. Gen. by Elliott S. Greenspan, Asst. Atty. Gen., New York City, for the People.

James J. Tini, Mineola, for defendant.

RAYMOND HARRINGTON, Judge.

This defendant was convicted in this Court, on March 27, 1984, upon jury verdicts, of grand larceny in the second degree, three (3) counts; grand larceny in the third degree, petit larceny, commercial bribing in the first degree and scheme to defraud in the first degree. He thereafter was convicted upon his pleas of guilty to three (3) additional counts of attempted grand larceny in the second degree, and sentence was imposed by this Court on May 16, 1984, for all of the convictions. The judgments of convictions were affirmed (112 A.D.2d 383, 491 N.Y.S.2d 839). Leave to appeal to the Court of Appeals was denied (65 N.Y.2d 928, 493 N.Y.S.2d 1047, 483 N.E.2d 140). The defendant, having been released on bail pending appeal, was then directed by the Clerk of this Court to appear in this Court for execution of the sentences on August 5, 1985. He did not appear.

Thereafter, the defendant was arrested by the Canadian Police in Toronto on April 21, 1987, and through this prosecutor's office, extradition proceedings were initiated by the United States government in Canada. On December 3, 1987, the Canadian Minister of Justice ordered that the defendant "... convicted of the crimes of five counts of grand larceny in the second degree, one count of grand larceny in the third degree, one count of Scheme to Defraud in the first degree and one count of attempted grand larceny in the second degree ..." be delivered by the Keeper of the Toronto Jail to the custody of a U.S. Marshal and a N.Y. State Officer to be conveyed to the State of New York (Prosecutor's Exhibit "M"; Defendant's Exhibit "B").

On December 15, 1987, the defendant Liebowitz appeared before this Court and was ordered to commence serving the sentence imposed on May 16, 1984. On January 26, 1988, the Grand Jury handed up this indictment (Defendant's Exhibit "A"), charging the defendant with failure to appear before this Court on August 5, 1985, or within thirty (30) days thereafter. More specifically, the indictment alleges that the crime of bail jumping in the second degree occurred on or about September 4, 1985.

The gravamen of the defendant's present complaint is that he cannot be prosecuted and this Court is without jurisdiction over him for this offense because the "doctrine of speciality or specialty" precludes prosecution for such a crime committed prior to his extradition, not included in the extradition order and not an extraditable offense under the current Canadian-American Extradition Treaty . More particularly, the defendant contends that dismissal of this indictment is required pursuant to Criminal Procedural Law Section 210.20(1)(h) in that the application of the "doctrine of speciality" is a jurisdictional or legal impediment to conviction of the defendant for the offense charged.

The doctrine or rule of speciality is a rule of international extradition law which prohibits the requesting state from prosecuting a returned offender for any offense, alleged to have been committed prior to his return, other than the offense for which extradition was granted. In the instant matter, the rule of speciality has been incorporated into the 1976 Treaty of Extradition between Canada and the United States which is currently in force . Article 12 of the Treaty provides:

(1) A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted nor be extradited by that State to a third State unless:

(i) He has left the territory of the requesting State after his extradition and has voluntarily returned to it;

(ii) He has not left the territory of the requesting State within thirty days after being free to do so; or

(iii) The requested State has consented to his detention, trial, punishment for an offense other than that for which extradition was granted or to his extradition to a third State, provided such other offense is covered by Article 2.

(2) The foregoing shall not apply to offenses committed after the extradition.

Of course, a treaty to which the government of the United States is a party is the supreme law of the land and "... the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." [U.S. Const. Art. 6]. The Supreme Court has held that courts are bound to take judicial notice of, and to enforce in any appropriate proceeding, the rights of persons growing out of treaties of the United States [ U.S. v. Rauscher, 119 U.S. 407, 417-419, 7 S.Ct. 234, 239-240, 30 L.Ed. 425 (1886) ].

Even in the absence of a treaty, it is a court's obligation to enforce recognized principles of international law where questions of right depending on such principles are presented for the court's determination [ The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290, 44 L.Ed. 320 (1900); see also, Banco Nacional de Cuba v. Sabbatino 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964); see generally, 2 O'Connell, International Law, 805-06 (1965) ]. The rule of speciality is such a recognized principle of international law which our courts have devised and applied in order to implement treaties entered into by the federal government. Furthermore, the Supreme Court in Rauscher has laid to rest any concept that a violation of the rule of speciality is not judicially cognizable because it impacts on the foreign relations of the United States [ Fiocconi v. Attorney General of the United States, 462 F.2d 475, 479 (2 Cir., 1972) ].

While this Court has found no New York State cases construing and applying the doctrine of speciality, the Court has no doubt of its obligation to apply this rule of law and its corresponding treaty codification to this case.

There is no factual dispute that Stuart Liebowitz was extradit from Canada pursuant to the above mentioned treaty. The first issue before the Court is whether Stuart Liebowitz is being detained and about to be tried in the United States for an offense (bail jumping in the...