People v. Wimms

68 Misc.3d 645

125 N.Y.S.3d 842

The PEOPLE of the State of New York

v.Rasha WIMMS, Defendant.

Docket No.: FG-300218-20QN

Criminal Court, City of New York.

Decided May 27, 2020

Queens Defenders (Jonathan Latimer, Esq.), Kew Gardens, for the Defendant

Melinda Katz, District Attorney (George Deluca-Farrugia of counsel), Kew Gardens, for the People

Scott A. Dunn, J.

I. Introduction

Article 570 of the New York State Criminal Procedure Law, which relates to extradition, is a statute which has largely avoided judicial scrutiny. Indeed, this case is a matter of first impression. Recently, however, this Court has been called upon to consider various aspects of the statute. For example, in People v. Luciano , this Court concluded that the People could not enforce a waiver of extradition under CPL 570.50 because it was not executed knowingly, intelligently, and voluntarily ( 66 Misc. 3d 884, 895, 119 N.Y.S.3d 714 [Crim. Ct. Queens County 2020] ). Accordingly, the People were directed to obtain a Governor's Warrant, which is required when a defendant does not waive extradition.

And then, in People v. Frank , this Court concluded that the People could not use a waiver of extradition under CPL 570.50 to detain a defendant until the outcome of his pending criminal case in New York State, because he had not knowingly, intelligently, and voluntarily consented to that detention ( 68 Misc.3d 337, ––– N.Y.S.3d ––––, 2020 N.Y. Slip Op. 20087, 2020 WL 1919212 [Crim. Ct. Queens County 2020] ). Such detention is permitted by CPL 570.44 when authorized by the Governor. In Frank , the People had attempted to use CPL 570.50 to waive that provision.

In the instant matter, as in Frank, the People sought to secure a waiver of extradition under CPL 570.50 and Defendant's consent to his detention pending the outcome of all outstanding criminal matters in New York State, effectively waiving CPL 570.44. When that effort proved unsuccessful, the People asserted that they had the right not to accept a waiver under CPL 570.50 and could bypass that statute by seeking a Governor's Warrant.

The People maintain that they have the right to seek defendant's consent to detention pending the outcome of all outstanding criminal matters in New York State, effectively waiving CPL 570.44 as part of the CPL 570.50 waiver of extradition process. The People further claim that if a waiver of CPL 570.44 is not obtained, a defendant issued a fugitive complaint with a pending criminal matter in New York State can be held under this statute without formal action and without a written instrument providing a defendant with notice that he is being held under CPL 570.44.

As a threshold matter, it is the Court that has the unfettered discretion to accept a waiver pursuant to CPL 570.50 and further, a defendant has a statutory right to seek such a waiver. Accordingly, the People do not have a right to reject that waiver or to require the defendant to consent to detention pursuant to 570.44, as a prerequisite for that waiver.

Moreover the People do not even have the right to seek a waiver of CPL 570.44 as part of the CPL 570.50 waiver of extradition process. Rather, such a waiver of CPL 570.44 is not authorized by statute. Accordingly, detention under CPL 570.44 may only occur when authorized by the Governor, and then, only if evidenced by a written instrument.

In the final analysis, it is clear that a roadmap is needed for cases such as these to ensure clarity. This decision attempts to provide such a roadmap.

II. Procedural History

On May 6, 2020 the Defendant appeared in Criminal Court, County of Queens, State of New York, for arraignment on two dockets. The first, CR-008749-20QN, charged the defendant with Penal Law § 265.03(3), and other related charges. The second docket, the subject of this decision, is a fugitive complaint filed under FG-300218-20QN seeking the Defendant's return to Pennsylvania on the basis of a violation of parole.

At the arraignment proceeding, Defendant sought to execute a waiver of extradition pursuant to CPL 570.50. The Defendant was informed by the People of his right to the issuance of a Governor's Warrant and to file a petition for a writ of habeas corpus challenging his extradition (tr at 8, lines 16-21). The People then posited the following question to the Defendant: "[d]o you understand that you will not be returned to Pennsylvania until up to 30 days after such time as you have disposed of all open criminal matters within New York State?" (tr at 8, lines 23-25; at 9, line 1). In response, the Defendant requested that the People "[e]xplain that again" (tr at 9, line 2). The Court then challenged the People on its inclusion of this statement in its colloquy with Defendant¹ . The People responded by declaring that they were no longer "willing to accept a waiver in this case...." (id . lines 20-22). The People further declared that they "have the right not to accept that waiver, and we are indicating for the record, that we will not accept that waiver" (tr at 10, lines 2-4).

This Court filed an interim order on May 11, 2020, seeking briefing on this issue. The parties' responses were filed on May 18, 2020.

III. The Parties' Arguments

In their response, the People concede that they cannot blanketly refuse to accept a waiver under CPL 570.50. Indeed, the People assert that "[a]t no time did the People state that we had to consent to the proposition of a defendant waiving extradition" (People's Response at 1). Rather, the People assert that the issue involving the waiver related solely to their concern that it be knowing, voluntary, and intelligent (id. at 1-2).

The People further assert, however, that a request to waive CPL 570.44 is encompassed within the CPL 570.50 waiver. The People base this position on language within CPL 570.50, which allows for a waiver of "all other procedure incidental to extradition proceedings" (People's Response at 3). The People assert that the Defendant's detention pursuant to CPL 570.44 is incidental to the ultimate extradition (id. ). Finally, the People argue that where such a waiver is not obtained, no written instrument providing notice of the Governor's action under CPL 570.44 is required (id. at 4).

On the other hand, Defendant argues that the People's consent is not a legal prerequisite to the Court's acceptance of a waiver of extradition pursuant to CPL 570.50 (Defendant's Affirmation at 4-5). Defendant further asserts that CPL 570.50 does not include any provision regarding the necessity of Defendant's consent to detention, and that any additional requirements outside the text of the statute cannot be read in (id. at 6-7).

IV. Pursuant to CPL 570.50, A Defendant Has The Right To A Waiver Of Extradition And The Court Has Exclusive Authority To Accept The Waiver Request

A. Statutory Framework²

The Uniform Criminal Extradition Act ("UCEA") was enacted "to implement the constitutional requirements of the Extradition Clause and to set forth extradition procedures" ( Luciano at 886, 119 N.Y.S.3d 714 ; People v. Fanning , 27 Misc. 3d 740, 746, 893 N.Y.S.2d 742 [Crim. Ct. Queens County 2010] ), citing 31A Am Jur 2d Extradition § 11 ; see 18 USCA § 3182 ). The UCEA "sets forth the procedure for arrest and delivering up of a person charged with a crime committed in one state or territory of the United States who presently is at large in another state or territory of the United States" ( Fanning at 746, 893 N.Y.S.2d 742, citing Peter Preiser, Practice Commentary, McKinney's N.Y. Crim Proc Law 570.02 ). In New York, the UCEA is codified in Article 570 (see CPL 570.02 ; Fanning at 746, 893 N.Y.S.2d 742 ), Pursuant to CPL 570.32, a complaint may be filed with a local criminal court seeking a defendant's extradition to another jurisdiction. A defendant is entitled by statute to the issuance of a warrant by the Governor of the State of New York and to challenge his or her extradition by filing a writ of habeas corpus ( CPL 570.18 ; 570.20; 570.24). These provisions must be strictly complied with as the consequence of non-compliance may result in the filing of felony charges ( CPL 570.26 ).

In cases where there is a requisition of a Governor's Warrant, a defendant can be incarcerated for a period of thirty-days pending requisition of the Governor's Warrant ( CPL 570.36 ). The statute provides that if the Governor's Warrant is not provided within thirty days, the criminal court may "discharge him or may recommit him for a further period of sixty days, or for further periods not to exceed in the aggregate sixty days." ( CPL 570.40 ). Upon requisition of the Governor's Warrant, the defendant may thereafter be detained for an additional thirty-days in order to facilitate removal to the demanding state. If the demanding state has not taken the defendant into its custody before the expiration of that thirty-day period, the defendant must be released from custody (Peter Preiser, Practice Commentaries, McKinney's Cons Laws of N.Y., CPL 570.36, citing 18 USCA § 3182 ["After receipt of the Governor's warrant [imposition of bail pursuant to CPL 570.38 ] is no longer applicable and if an officer of the demanding state has not arrived to receive custody within thirty days from receipt or [sic] the Governor's warrant federal law requires that the fugitive must be discharged from custody."] ).

However, pursuant to CPL 570.50, a defendant may waive both the issuance of a Governor's Warrant and the right to file a petition for a writ of habeas corpus challenging the extradition itself and the legality of his arrest. In such circumstances, the defendant must be informed "of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus as provided for in section 570.24" ( CPL 570.50 ). Under such circumstances, CPL 570.50 provides that "[t]he judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state ..." (...