People v. Williams
| Decision Date | 31 January 1977 |
| Parties | The PEOPLE of the State of New York v. Willie Norris WILLIAMS, Defendant. |
| Court | New York City Court |
Robert Morgenthau, Dist. Atty., New York County, New York City, for the People; Richard Printz, New York City, of counsel.
William Gallagher, Legal Aid Society, New York City, for defendant; Ann Mudge, New York City, of counsel.
The defendant, an alleged probation violator from North Carolina, moves, pursuant to CPL §§ 570.36, 570.40, for a dismissal of the fugitive warrant before the court. The People move pursuant to § 410.80 of the CPL to have the defendant delivered to the custody of the North Carolina authorities.
On September 6, 1973, the defendant had executed a waiver of extradition to the State of North Carolina. (In examining the waiver, it seems to this court that the executed waiver was for violations of probation In futuro.)
No New York Governor's mandate honoring North Carolina's request has ever been issued.
The defendant was arrested on or about August 10, 1976, and was remanded for appearance in the Criminal Court. On August 11, 1976, an Acting Supreme Court Justice paroled the defendant. Subsequently, the matter was on for August 20, October 5, November 5, 1976, and January 20, 1977. The defendant is still on parole and has made all appearances.
The time of the arrest and arraignment as a fugitive starts the ninety-day period in which the Governor's warrant must be issued (CPL §§ 570.36, 570.40).
The defendant contends that the ninety-day time limit contained in the CPL has long since expired. The defendant thus alleges that this court no longer has jurisdiction over the matter and that the defendant should be dismissed.
While the defendant is on parole and is not incarcerated as such, he alleges that the issue of the fugitive warrant 'holds' him, making him subject to the mandate of the court. His freedom is thus restricted, i.e., he is in effect 'committed.' (It is noted at this juncture that the defendant has not moved by writ of habeas corpus for his release.)
Finally, the defendant contends that he was a teenager at the time he executed the waiver of extradition. At the very least there should be a hearing as to whether the waiver was knowingly and voluntarily executed.
The prosecution argues that, notwithstanding the absence of a New York State Governor's mandate before this court, the 1973 waiver of extradition is effective, and, pursuant to § 410.80 of the CPL, the defendant should be presented to the North Carolina authorities.
The statutes under consideration are the following:
§ 570.36 Commitment to await requisition; bail
If from the examination before the local criminal court it appears that the person held is the person charged with having committed the crime alleged, and, except in cases arising under section 570.14 or 570.16, that he has fled from justice, the local criminal court must, by a warrant reciting the accusation, Commit him to the county jail for such time not exceeding thirty days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused gives bail as provided in the next section, or until he shall be legally discharged. (Emphasis added.)
§ 570.40 Extension of time of commitment; adjournment
If the accused is not arrested under warrant of the governor by the expiration of the time specified in the warrant, bond or undertaking, a Local criminal court may discharge him or may re-commit him for a further period of sixty days, or for further periods not to exceed in the aggregate sixty days, or a supreme court justice or county judge may again take bail for his appearance and surrender, as provided in section 570.38 but within a period not to exceed sixty days after the date of such new bond or undertaking. (Emphasis added.)
§ 410.80 * Transfer of supervision of probationers
1. Authority to transfer supervision. In any case where a sentence of probation is pronounced, if the defendant resides or desires to reside in a place other than one within the jurisdiction of the probation department that serves the sentencing court, such court may designate any other probation department within the state to perform the duties of probation supervision and may transfer supervision of the defendant thereto. Any such designation must be in accordance with rules adopted by the director of the state division of probation.
2. Transfer of powers. Where supervision of a probationer is transferred pursuant to subdivision one, the probation department and probation officers to which the duties of probation supervision have been transferred have the same powers and duties as otherwise would have been possessed by those serving the sentencing court. The court served by the probation department to which supervision is transferred has the powers specified in sections 410.20, 410.30, 410.40, subdivision three of section 410.50, and section 410.60. If it appears that the defendant has violated a condition of his sentence, such court also has the power to:
(a) Commit the defendant to the custody of the sheriff, and direct such official to bring the defendant promptly before the court that imposed the sentence; or
(b) Conduct a hearing on the violation pursuant to subdivisions one through four of section 410.70 and make findings of fact. In such case, the court may then either (i) continue or modify the sentence, or (ii) commit the defendant as provided in paragraph (a) and send a certified copy of the transcript of the hearings and its findings to the court that imposed the sentence.
We can now direct our attention to the defendant's status and his argument that he is being 'held.'
Webster's Seventh New Collegiate Dictionary defines 'commitment' as a 'consignment to a penal or mental institution.'
The CPL 570.36 and 570.40 reference is to 'commitment,' and in this court's view counsel misinterprets the language in the statute. The word 'discharge' in the statutes clearly means to release from commitment or confinement.
The apprehension of a fugitive for the purpose of extradition is indeed a criminal arrest (see CPL Articles 120 and 570; Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670). The arrest does deprive the fugitive of his liberty for the purpose of insuring his presence at a criminal trial.
The defendant in the present case is on parole. He has not been 'incarcerated' or 'committed.' The defendant's status with the presence of the outstanding fugitive warrant and the parole status will hinder the defendant's movements and prevent him from being completely free.
The defendant is 'in custody.' The word 'custody' as defined by Black's Law Dictionary states:
'The term is very elastic and may mean actual imprisonment or physical detention Or mere power, legal or physical, Of imprisoning or of taking . . . possession' (emphasis added).
This court suggests that the defendant is 'in custody,' and that status as applied here represents the legal power to imprison. This is quite different from actual imprisonment or confinement, neither of which existed here.
The logic for the ninety-day time limitation as to 'committing' a defendant regarding extradition is twofold. The first is that ninety days is a reasonable period for a 'governor's warrant' to be forthcoming. Second, such a time limit places a reasonable time for a defendant Confined to jail. During this period, the defendant is at an obvious and distinct disadvantage in that he can only resist his incarceration and the entire extradition procedure from a very poor tactical standpoint--the jail cell. Confinement greatly impairs an individual's ability to prepare and assist in his defense of the charges.
The ninety-day limit keeps the time in which a defendant can be in this vulnerable position to set limits.
On the question of jurisdiction, case law is sparse. However, in People ex rel. Green v. Nenna, 53 Misc.2d 525, 279 N.Y.S.2d 324, affirmed 24 A.D.2d 936, 264 N.Y.S.2d 211, affirmed 17 N.Y.2d 815, 271 N.Y.S.2d 267, 218 N.E.2d 311, a parallel issue was raised by counsel, i.e., that the court had lost jurisdiction of the detainee because the ninety-day time limit had long since expired. In the Green case the relator (defendant) was actually incarcerated, and the court, after over 135 days of imprisonment, had before it the Governor's mandate to turn over the relator to the requesting state. However, on the question of retaining jurisdiction the principle remains the same.
Mr. Justice Davidson in Green (53 Misc.2d 525, 526--527, 279 N.Y.S.2d 324, 325, supra) stated:
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Klock, In re
...parallels Penal Code section 1555.1, no cases have dealt directly with the question here presented. In People v. Williams (Crim.Ct.N.Y.1977) 89 Misc.2d 269, 391 N.Y.S.2d 518, the court did not dismiss the fugitive warrant and specifically set for argument the issue of the validity of a prio......
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James H. Hval, In re
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Jones v. People
...instituted, the accused still remains a "fugitive" and is not immunized from extradition in the future. People v. Williams, 89 Misc.2d 269, 391 N.Y.S.2d 518, (Crim.Ct.N.Y.C., 1977). In the Williams case, the Court cites People ex rel. Green v. Nenna, 53 Misc.2d 525, 279 N.Y.S.2d 324, aff'd ......