People v Lewis
Annotate this CaseDecided on February 4, 2005
County Court, Sullivan County
THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
against
Joseph Lewis, Defendant.
11-04
Hon. Stephen F. Lungen
Sullivan County District Attorney
Sullivan County Courthouse
Monticello, NY 12701
By: Karen Mannino, ADA, of counsel
Attorney for the People
Sullivan Legal Aid Panel, Inc.
11 Bank Street
Monticello, NY 12701
By: Stephan Schick, Esq., of counsel
Attorney for the Defendant
Frank J. LaBuda, J.
Defendant moves by Order To Show Cause (OSC) for relief in the nature of habeas corpus to be released from the Sullivan County Jail forthwith pursuant to CPL §570.36 and 570.40.
The People submit an affirmation in opposition.
Defendant was arrested and arraigned on October 17, 2004 pursuant to a fugitive warrant from the State of Georgia charging him with committing various felonies including, inter alia, kidnapping, family violence battery and false imprisonment.
He was arraigned by a local criminal court, assigned Legal Aid to represent him and remanded to the Sullivan County Jail without bail.
Defendant next appeared in this Court on October 25, 2004. He was re-assigned Legal Aid and the matter was adjourned to October 27, 2004 for the defendant and his attorney to meet and discuss the case.
On October 26, 2004 defendant appeared in this Court and stated that he was hiring his own attorney and asked for an adjournment for said purposes. The within matter was adjourned to November 1, 2004 for appearance with new counsel.
On November 1, 2004 defendant did not have new counsel and Legal Aid was re-assigned to reappear on November 3, 2004.
Defendant, at the appearance on November 3, 2004 indicated that he was not waiving extradition.
This matter was then adjourned for a Governor's Warrant from the demanding State to December 1, 2004. The absence of a Governor's Warrant led to further adjournments to January 4, 2005 and February 1, 2005.
On January 28, 2005 defendant filed an OSC for release from the Sullivan County Jail pursuant to CPL §570.36 and 570.40. Said OSC was returnable on January 31, 2005.
The People submitted an affirmation in opposition on January 31, 2005 and this Court reserved for a written decision.
Defendant argues that he has been in the Sullivan County Jail for over the one hundred days in contravention of the ninety days allowed pursuant to CPL §570.36 and CPL §570.40 and must now be released.
The People agree that the defendant must be released from jail if a Governor's Warrant is not filed within ninety days but said time only begins to run on the date the defendant declares that he is refusing to waive extradition. Said date being November 3, 2004 and thus ninety days have not run yet. [*2]
The People are in error on two fronts. First, that the commencement of the ninety day statutory period for release begins at detention of the fugitive warrant not upon declaration of the defendant of non-waived of extradition and that, even if the statutory period began on November 3, 2004 (declaration in open court of defendant's refusal to waive extradition)ninety days have already run.
Upon arrest of a defendant on a fugitive warrant a court may, after arraignment, remand said person without bail for an initial period of thirty days and extend said remand for another sixty days absent a Governor's Warrant. See, CPL §570.36 and 570.40.
"CPL 570.36 and 570.40 are primarily designed to insure that an accused is not indefinitely detained in the absence of State action toward extradition." People ex rel Brandolino v Hastings, 72 AD2d 821 (2nd Dept, 1979).
"The time of arrest and arraignment as a fugitive starts the period in which the Governor's Warrant must be issued." People ex rel Houllahan v Lombard, 49 AD2d 1036 (4th Dept, 1975).
CPL §570.36 and 570.40 requires the release of a person remanded on a fugitive warrant after ninety days absence the filing a Governor's Warrant but does not immunize fugitive from extradition. People ex rel Brandolino v Hastings, supra;
People ex rel Keesee v Warden of Rikers Island Adolescent Detention Center, 51 AD2d 756 (2nd Dept., 1976).
A simple calculation from the defendant's arrest and arraignment on the fugitive warrant on October 17, 2004 until the return date of the within OSC on January 31, 2005 is 107 days. Indeed, the ninety date statutory period for release was met on January 14, 2005.
The People's interpretation that the ninety day period begins on fugitive's declaration of non-waiver of extradition is error.
Even if said ninety days was calculated from the "date of non-waiver declaration" on November 3, 2004 the period expires on January 31, 2005.
Based upon the above, it is
ORDERED, that absent a issued Governor's Warrant, defendant Joseph Lewis shall be released from the Sullivan County Jail, on his own recognizance, forthwith, and it is further [*3]
ORDERED, that absent a issued Governor's Warrant, defendant Joseph Lewis and counsel shall appear before this Court at 9:00
in the forenoon on Wednesday, February 9, 2005.
This shall constitute the Decision and Order of this Court.
DATED: February 4, 2005
Monticello, NY
_______________________________
Hon. Frank J. LaBuda
Sullivan County Court Judge
and Surrogate
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