| New York County Courts | Apr 29, 1983
OPINION OF THE COURT
This proceeding involves petition under CPLR article 70 for a writ of certiorari and habeas corpus brought by the petitioner, who because of a warrant of arrest issued by the Governor of New York upon a demand of the Governor of Wisconsin charging the petitioner with being a fugitive from justice of that State, seeks a writ to test the legality of his extradition.
Pursuant to the Governor’s said warrant of arrest, the petitioner appeared before the court on April 1, 1983, together with his attorney at which time, the District Attorney, representing the Sheriff of the County of Fulton, presented to the court the extradition papers herein. Petitioner was then arraigned and advised by the court of his rights pursuant to CPL 570.24 whereupon a hearing was scheduled for April 12, 1983, to afford petitioner an opportunity to obtain a writ of habeas corpus. Meanwhile, at the
The petition for a writ which is the subject matter of this decision, was presented to the court on Wednesday. April 6, 1983.
DECISION
Petitioner’s application must be denied.
From a reading of CPLR 7003
In effect, a writ of habeas corpus challenges and puts in issue the legality of the extradition proceedings the ultimate purpose being not only the enforcement of the relator’s right to freedom but to also defeat his deliverance to the authorities of the demanding State.
The difficulties the petitioner now finds himself in are brought about by the fact that his bail was continued after the issuance of the Governor’s warrant. In retrospect, this may be error. While CPL article 570 is silent on the matter of bail when one is arrested on the Governor’s warrant, inferentially at least, it appears that such a person is to be held without bail.
Counsel for petitioner insists that his client is entitled to both bail and a writ by virtue of CPL 570.38 and 570.24, respectively. The court thinks not. The first portion of CPL 570.38 deals with bail when one is arrested as a fugitive prior to the issuance of the Governor’s warrant for extradition; the latter portion deals with the condition for such bail the pertinent language of which states: “conditioned for his appearance before him at a time specified in such bond or undertaking * * * and for his surrender, to be arrested upon the warrant of the governor of this state.” (Italics ours.) This verbiage infers, or implies, that the fugitive is to be held without bail once arrested on the Governor’s warrant. Moreover, it would be inconsistent, if not inane, to grant one the right to bail and to at the same time grant one a writ both of which releases one to liberty. A rational interpretation of CPLR 7003 addresses itself to the release of the petitioner and, in the language of this same statute, if the petitioner is not illegally detained, the petition shall be denied; accordingly, petitioner not meet
It is the considered opinion of this court that holding one without bail is both logical and necessary to the furtherance of the purpose of extradition and that it does not violate one’s constitutional right to deny one of bail once arrested on the Governor’s warrant (.People ex rel. McGill v Wright, 62 Mise 2d 154).
Petitioner complains that to deny his application prejudices his right to test the legality of his extradition and/or to put in issue, in writing, all that he chooses to challenge or raise. In the ordinary case — that is to say, if the petitioner was not free on bail — his complaint would be meritorious; however, under the fact pattern of this case, it is not. First, the reality is that the petitioner gained his freedom at his own request and ought not now be heard to lament that fact because it resulted in the denial of the application for a writ. To allay his fear and to guarantee petitioner the entire gamut of his rights, this court has informed petitioner that despite the denial of this application, it will treat the petition and the supporting papers thereunder as petitioner’s responsive pleading to test the legality of the extradition no less than if granted a writ. Put another way, the court will grant the petitioner wide latitude in traversing the demand for his extradition despite the denial of a writ or order to show cause.
Patently, this gives the petitioner the best of both worlds in that he has gained his liberty while at the same time, afforded an unfettered opportunity to fully test the legality of his arrest and attempted extradition. Though this procedure may be somewhat unusual, it nevertheless assures the petitioner his rights.
“When the writ shall be issued, (a) Generally. The court to whom the petition is made shall issue the writ without delay on any day, or, where the petitioner does not demand production of the person detained or it is clear that there is no disputable issue of fact, order the respondent to show cause why the person detained should not be released. If it appears from the petition or the documents annexed thereto that the person is not illegally detained or that a court or judge of the United States has exclusive jurisdiction to order him released, the petition shall be denied.’’