21 A.D.2d 829 | N.Y. App. Div. | 1964
In a habeas corpus proceeding, the relator appeals from an order of the Supreme Court, Kings County, dated March 31, 1964 (see 42 Misc 2d 239), which dismissed the writ and directed the delivery of the relator into the custody of an agent of the State of Alabama pursuant to a warrant of extradition. Order reversed and proceeding remitted to the Criminal Term of the Supreme Court, Kings County, for the purpose of: (a) holding a further hearing on the facts; and (b) making a determination de novo on the basis of the proof adduced upon such further hearing. Relator claims that, on the return of his writ of habeas corpus, his attorney requested that he be permitted to argue the law only and that the hearing on the facts be reserved for a later date. This is not denied by the District Attorney, although it is obvious from the minutes that the Justice who eventually conducted the hearing was not aware of any such reservation. We agree with the learned Justice below that, as a matter of law, the warrant of the Governor of the State of New York was validly issued. We are constrained, however, in the interests of justice, to grant to the relator a further hearing for the purpose of contesting such facts as he properly may in this proceeding, and for the purpose of obtaining an adjudication on the basis of all the proof adduced with respect to the issues raised (see People ex rel. Higley v. Millspaw, 281 N. Y. 441). On the court’s own motion, Anthony F. Marra, Esq., 100 Centre Street, New York, N. Y., is assigned as counsel to represent the relator on the further hearing. Ughetta, Acting P. J., Kleinfeld, Brennan, Hill and Hopkins, JJ., concur.