State ex rel. Rudin on Behalf of Bond v. Ward

• Decision Date: 14 December 1981
• Citation: 112 Misc.2d 62,445 N.Y.S.2d 1002
• Parties: STATE of New York ex rel. Joel B. RUDIN on behalf of Zilma BOND, Petitioner, v. Benjamin WARD, Commissioner of Correction, City of New York, Respondent.
• Court: New York Supreme Court

Page 1002

445 N.Y.S.2d 1002

112 Misc.2d 62

STATE of New York ex rel. Joel B. RUDIN on behalf of Zilma BOND, Petitioner, v. Benjamin WARD, Commissioner of Correction, City of New York Respondent.

Supreme Court, New York County Part 80.

Dec. 14, 1981.

Robert M. Morgenthau, Dist. Atty., New York City, for Benjamin Ward, Commissioner of Correction, City of New York, respondent; Vicki O. Wittenstein, Asst. Dist. Atty., New York City, of counsel.

Joel B. Rudin, New York City, for State of New York ex rel. Joel B. Rudin on behalf of Zilma Bond, petitioner.

ROBERT M. HAFT, Justice:

Petitioner has instituted this writ of habeas corpus to test the legality of a warrant issued by the Governor of this State on a requisition from the Governor of Wisconsin demanding petitioner's extradition to that State to be tried for the crime of burglary.

Zilma Bond, petitioner herein, was arrested in New York by Federal marshals on March 12, 1981, on a charge of interstate flight to avoid prosecution. On March 24, 1981, petitioner was turned over to State authorities and arraigned on a fugitive complaint. Petitioner was remanded to the custody of Benjamin Ward, Commissioner of Correction, City of New York, respondent herein. Bail conditions were later set and petitioner was released on bail on April 18, 1981. On May 26, 1981, the Governor of Wisconsin signed a request, supported by affidavits, for the extradition of petitioner to Wisconsin. On June 23, 1981, the Governor of New York issued a warrant for petitioner's extradition. Petitioner's bail status was continued by consent. He then filed the instant application for habeas corpus relief, the basis being that the Governor's warrant ordering petitioner's extradition to Wisconsin is not based upon probable cause, in that there is insufficient evidence to believe that the petitioner committed the burglary there charged.

The petition presents this court with a unique opportunity to attempt to resolve some of the confusion surrounding the issue of "probable cause" in extradition proceedings. Two novel questions are presented by this case: The first--whether the Supreme Court's decision in Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978), has overruled a line of older New York cases which permit the habeas court to review the probable cause for issuance of a governor's warrant; the second--whether probable cause to extradite can be based solely on hearsay allegations. This court finds that it is not precluded from a probable cause review by Doran and that in an appropriate case hearsay alone may support a finding of probable cause.

In reaching these conclusions the analysis must necessarily focus on the recitals contained in the papers accompanying the requisition by the Governor of Wisconsin. The detailed affidavit that accompanied the requisition in this case was executed by a Detective Dobesh on May 13, 1981. The information recited was obtained from various sources. Two police officers known personally to Dobesh stated that at about 4:45 a.m. on September 9, 1974, they were called to investigate a burglary at the Hometown Ice and Coal Company building in Milwaukee, Wisconsin. They caught two persons running from the building. One officer then went to the second floor of the building and found an opened walk-in vault filled with tear gas. In the same room were screwdrivers, crowbars, acetylene torches and other tools. Also discovered was a hole in the skylight. When the officers inspected the roof of the building next door, they discovered Zilma Bond lying face down with cotton gloves in one hand and a flashlight in the other. Boxes of calculators were found between the two buildings. The comptroller of Hometown informed Dobesh that the calculators were the property of the company and that none of the three defendants had been given permission to enter.

The Dobesh affidavit further recited a confession to the crime by one of the alleged participants which also implicated Bond. Also annexed to that affidavit was a copy of the burglary complaint sworn against Bond by Dobesh on September 9 1974. Dobesh stated that he was called upon to investigate the burglary, and he also corroborated the statements by the other two officers. ^*

The extradition clause of the Constitution (Art. IV, § 2, cl.2) provides that:

"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."

This provision is implemented by the Uniform Criminal Extradition Act, which has been adopted by most states, including New York and Wisconsin (CPL 570; Wisc. Chap. 964 (West 1958)). Sections 570.06 and 570.08 of the Criminal Procedure Law makes it the duty of the Governor of this State, upon proper demand from the executive authority of any other state, to extradite any person "substantially charged" in that state with a crime who has fled to this State.

This court is competent, of course, to rule on the propriety of the writ (CPLR § 7002(b)(3)). The Uniform Extradition Act expressly preserves the right of an accused to the extraordinary writ (CPL 570.24; Wisc. § 964.01 (West 1958). And, in any case (even though a petitioner has been released on bail), impending extradition is a deprivation of liberty sufficient to entitle a petitioner to apply for habeas relief. Ierardi v. Gunter, 528 F.2d 929 (1st Cir. 1976); Kirkland v. Preston, 385 F.2d 670 (D.C.Cir. 1967); People ex rel. Cooper v. Lombard, 45 A.D.2d 928, 357 N.Y.S.2d 323 (4th Dept. 1974); see, CPLR § 7002(a).

When the governor of a sister state makes a demand for extradition, "area of inquiry and review both by the Governor and the courts is limited." People ex rel. Swanson v. Fitzsimmons, 2 A.D.2d 235, 236, 153 N.Y.S.2d 772 (4th Dept. 1966). Nevertheless, the courts of New York have consistently held that there must be probable cause to extradite. People ex rel. Cooper v. Lombard, 45 A.D.2d 928, 357 N.Y.S.2d 323 (4th Dept. 1974); People ex rel. Miller v. Krueger, 35 A.D.2d 743, 316 N.Y.S.2d 246 (2d Dept. 1970); People v. Artis, 32 A.D.2d 554, 300 N.Y.S.2d 208 (2d Dept. 1969). As the Appellate Division, Fourth Department has stated: "the asylum State has a vital interest in the liberty of its citizens and other inhabitants, and ... it is only a slight burden on a demanding State to show probable cause for the issuance of a warrant." People ex rel. Cooper v. Lombard, supra, 45 A.D.2d at 928, 357 N.Y.S.2d 323. If there is no probable cause to believe that petitioner committed the crime charged, it would be unjust to permit his extradition, especially since no magistrate or neutral judicial officer in Wisconsin has determined that probable cause exists. The hardship to petitioner if this court cannot address the probable cause issue is staggering; at best, extradition "means an extended period of detention, involving custody pending administrative arrangements in two states as well as forced travel in between. At worst, it means separation from a familiar jurisdiction and effective denial of the support of family, friends and familiar advisors." Ierardi v. Gunter, supra at 930; See also, In re Consalvi, 376 Mass. 699, 382 N.E.2d 734 (1978).

In addressing the issue of probable cause, it should be clear that the requirement is constitutional, not merely statutory. Some courts have perceived as one and the same the probable cause inquiry and the separate issue of whether the relator is adequately "charged" within the meaning of the Uniform Criminal Extradition Act. See People ex rel. Pray v. Allen, 63 A.D.2d 1056, 405 N.Y.S.2d 822 (3d Dept. 1978); People ex rel. Cook v. Gavel, 51 A.D.2d 641, 377 N.Y.S.2d 839 (4th Dept. 1976); People ex rel. Donohoe v. Andrews, 104 Misc.2d 384, 428 N.Y.S.2d 384 (Sup.Ct., Broome Co. 1979); People v. Miller, 74 Misc.2d 806, 342 N.Y.S.2d 288 (Sup.Ct., Suffolk Co. 1973); Bailey v. Cox 260 Ind. 448, 296 N.E.2d 422 (1973); Brode v. Power, 31 Conn.Sup. 411, 332 A.2d 376 (1974); Rayburn v. State, 366 So.2d 698 (Ala.Cr.App.1978), aff'd, 366 So.2d 708 (Ala.1979). In some of these decisions the courts involved have assumed that in order to be "charged" or "substantially charged" under the applicable statute there must be probable cause. See People v. Miller, supra; Brode v. Power, supra; Rayburn v. State, supra. There seems little reason why probable cause should be equated with the statutory extradition requirements. Our legislature could not have so intended because at the time of the enactment of the Uniform Extradition Act (1936 in New York), the Fourth Amendment had not been made applicable to the states at all. Moreover, the Fourth Amendment, like the Fourteenth, is absolute on its face--it needs no statutory implementation to be operative. The application of the Fourth Amendment cannot be restricted by the Extradition Act, for if the statute is applied, only the "indictment information or the affidavit" submitted in support of the demand could be looked to. CPL 570.08. In contesting extradition, the burden is on the petitioner to show that the governor has not complied with the statutory requirements. ^** United States ex rel Vitiello v. Flood, 374 F.2d 554 (2d Cir. 1967); People ex rel. Pray v. Allen, supra.

On the other hand, where a probable cause challenge has been permitted, the burden is shifted to the respondent. People ex rel. Gatto v. District Attorney of Richmond County, 32 A.D.2d 1053, 303 N.Y.S.2d 726 (2d Dept. 1969); see Kirkland v. Preston, supra. A separate, heightened scrutiny should be reserved for determination of the probable cause issue. People ex rel. Cooper v. Lombard, supra; People v. Artis, supra; People ex rel. Gondolfo v. Lindemann, 63 Misc.2d 773, 313 N.Y.S.2d 786 (Rockland Co.Ct.1969), aff'd, 34 A.D.2d 1105, 314 N.Y.S.2d 702 (2d Dept. 1970); Kirkland v....