People v. Dingle

75 Misc.3d 924

171 N.Y.S.3d 727

The PEOPLE of the State of New York

v.Ronnie DINGLE, Defendant/Detainee

Docket No. FG-300084-21BX

Supreme Court, Bronx County, New York.

Decided on April 5, 2022

Darcel D. Clark, District Attorney (Gary T. McKenna of counsel), for plaintiff.

Bronx Defenders (Jamaal Jones of counsel) for defendant.

Steven L. Barrett, J. Defendant Ronnie Dingle is held in custody pursuant to having been remanded on an extradition hold, FG-300084-21BX, from requesting state Connecticut, and in lieu of bail of $75 K cash, $100 K insurance company bond, or $100 K partially secured bond (10%) on a pending New York State (Bronx County) criminal charge of criminal possession of a weapon second degree, Indictment 70680-21. On the FOA, defendant elected to waive extradition to the State of Connecticut on 10/14/ 21 rather than requesting a Governor's Warrant. Subsequently, the Court was informed by the District Attorney that New York would proceed on the Bronx County Indictment prosecution first before releasing defendant to Connecticut, so that defendant would remain in custody under the FOA regardless of his bail status on the open case. Indeed, defense counsel has recently stated that defendant would be able to make bail in the open New York case and has protested defendant's continuing remand status on the FOA insofar as it makes bail academic on the open matter and will result in his protracted and unwarranted imprisonment on the extradition hold even as that matter is held in abeyance. At least when the foreign matter does not entail an allegation of causing a death or other capital offense (see CPL 570.38 ), a determination that defendant can be held in New York on remand status indefinitely — regardless of the nature or merits of the foreign matter for which he is being extradited and despite his inability to address that matter currently (see CPL 570.46 ) — may well lead to an unjust imprisonment that was not contemplated by the controlling statutes.

Because the District Attorney has announced its intention to try the New York indictment before releasing defendant to Connecticut, invoking the District Attorney's putative power to choose whether to hold defendant for New York prosecution or to release defendant to Connecticut immediately, this election has direct and significant consequences affecting defendant's liberty. The power to make this election must be clearly authorized and exercised under constraint of specified procedures.

As the liberty interests of this defendant and others similarly situated are implicated by this choice of whether to hold or send the individual, this Court will review the statutory provisions that are applicable and seek to clarify what procedures are intended and must be put into effect.

There is, of course, a simple solution to this situation, that may or may not be appropriate here, that would eliminate this tension between the legitimate goals of extradition and interstate comity and the principle that a continuing denial of liberty must be well justified. While it is the practice upon detention in connection with extradition for the People to request remand status, and for the courts to grant that request, remand is not mandated by statute and the New York courts are free to set bail or even to release an extradition detainee on his own recognizance. CPL 570.38. Often, however, an extradition request falls upon a defendant's arrest on separate New York charges, and the bail decision is made in view of both matters together. In any event, the fact that the courts can fashion a bail decision as to an extradition request is a trivial solution to the problem here identified insofar as it is generally observed only in the breach and does not address a liberty concern that frequently arises due to the general practice of ordering that an extradition detainee be remanded.

It bears noting at the outset that just as a defendant / detainee does not have any right to choose the order in which the New York indictment and the foreign extradition request will be resolved, the District Attorney has no such power to make that determination. This point is worthy of mention because it is widely assumed, as reflected in the practice and by the statements of the Assistant here, that the District Attorney does have that right. In fact, the controlling statute confers the right to choose exclusively on the New York State Governor. CPL 570.44 states: "If a criminal prosecution has been instituted against such person under the laws of this state and is still pending, the governor, in his discretion, may either surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this state." This clear assignment of discretion to the New York Governor is the legislative descendent of People ex rel. Gallagher v. Hagan , 34 Misc. 85, 69 N.Y.S. 475 (N.Y. Sup. Ct. 1901), which citing an even older precedent recognized that the governor's duty to surrender is neither absolute nor unqualified but instead depends on the circumstances of the case.

The District Attorney here is plainly aware of this authority and of this statutory provision but interprets this as satisfied by the statement in memorandum: "It is established policy of the New York Governor to allow criminal prosecutions to run their course before the Governor orders extradition." This position finds some support in People v. Harris , 30 Misc. 3d 483, 912 N.Y.S.2d 398 (Cattaraugus Co. Ct. 2010), but this decision summarily reaches the conclusion that "this policy seems to be both logical and efficient" while offering no analysis in support of that conclusion nor any scrutiny of the precise language of CPL 570.44 in which the Governor's authority is defined. Far more persuasive is the discussion in People v. Wimms , 68 Misc. 3d 645, 125 N.Y.S.3d 842 (N.Y. Crim. Ct. 2020), in which Judge Dunn, grounding his decision in due process as well as the express statutory language of CPL 570.44, held that informal communications or policies attributable to the Governor's staff handling extradition matters satisfies neither. Instead, to invoke this statutory provision, the court must be notified "in writing, with clear evidence that the Governor has authorized that the defendant be held pursuant to that statute." Id. at 660, 125 N.Y.S.3d 842. This Court agrees that the discretionary choice in which a substantial liberty interest may be affected, in which the authorizing statute explicitly names the Governor, and in which the Governor's role in extradition is historically and statutorily fundamental, must reflect a decision by the Governor in the individual case, as opposed to a policy or a staff opinion or an informal understanding.

The actual language of CPL 570.44 states that the Governor has a choice between two options. Obviously, when the Governor issues a decision expressing one of those choices, the direction is clear. But it appears in this case, and we suspect in most cases due to the informality of the practice in most cases, that the Governor has not expressed a choice and that there is no formal written...