People ex rel. Webster v Fischer

[*1] People ex rel. Webster v Fischer 2008 NY Slip Op 52272(U) [21 Misc 3d 1129(A)] Decided on October 23, 2008 Supreme Court, Westchester County Adler, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 23, 2008
Supreme Court, Westchester County

People of the State of New York ex rel. Diane T. Webster, Esq. On Behalf of Shiela Davalloo, , Petitioner,

against

Brian Fischer, Commissioner of the New York State Department of Correctional Services, and AIDA PEREZ, Superintendent, Bedford Hills Correctional Facility, Respondents,



08-18021



THE LEGAL AID SOCIETY

OF WESTCHESTER COUNTY

Attorneys for Petitioner

One North Broadway, Ninth Floor

White Plains, New York 10601

BY: Diane T. Webster, Esq.

WESTCHESTER COUNTY DISTRICT

ATTORNEY'S OFFICE

111 Dr. Martin Luther King, Jr. Boulevard

White Plains, New York 10601

By: John J. Sergi, Esq.

HON. ANDREW M. CUOMO

Attorney General, State of New York

101 East Post Road

White Plains, New York 10601

By: Dian Kerr McCullough, Esq.

Lester B. Adler, J.

By order to show cause dated August 28, 2008, petitioner moves for relief pursuant to CPLR Article 70 for an order denying the State of Connecticut's request for temporary custody pursuant CPL §580.20. The Westchester County District Attorney's Office filed a return to the writ of habeas corpus with the Court on September 30, 2008, and petitioner's reply affirmation with accompanying memorandum of law was filed with the Court on October 16, 2008.

FACTUAL AND PROCEDURAL BACKGROUND

On February 19, 2004, petitioner was convicted in the Westchester County Court after a non-jury trial of one count of attempted murder in the second degree, one count of assault in the first degree and one count of criminal possession of a weapon in the fourth degree. Petitioner was sentenced on April 20, 2004 to a determinate term of 25 years on the attempted murder and assault charges and a concurrent definite term of one year on the possession of a weapon charge. [*2]Her conviction was affirmed by the Appellate Division, Second Department (People v. Davalloo, 39 AD3d 559, 833 NYS2d 576), and leave to appeal to the Court of Appeals was denied (People v. Davalloo, 9 NY3d 864, 840 NYS2d 894, 872 NE2d 1200).

After petitioner began serving her sentence, on November 6, 2007, an information charging petitioner with the murder of Anna Lisa Raymundo was filed with the Superior Court of the State of Connecticut. A warrant for petitioner's arrest was executed on the same date. There is no indication in the record before the Court when the State of Connecticut lodged a detainer with the Bedford Hills Correctional Facility. However, it would appear that it was at some time subsequent to the filing of the information and prior to February 11, 2008.

According to an "Agreement on Detainers: Form 1" dated February 9, 2008 (the "Form"), a copy of which is attached to the petition, petitioner was given written notice pursuant to the Interstate Agreement on Detainers ("IAD") of the existence of "untried indictments, informations or complaints." The Form further advised petitioner of her rights pursuant to CPL §580.20(III) "to request the appropriate prosecuting officer of the jurisdiction in which any such indictment, information or complaint is pending and the appropriate court that a final disposition be made thereof."

Although no request for temporary custody had been made at the time, the Form advised petitioner that under the provisions of the IAD:

"the prosecuting officer of a jurisdiction in which any such indictment, information or complaint is pending may institute proceedings to obtain a final disposition thereof. In such event, you may oppose the request that you be delivered to such prosecuting officer or court. You may request the Governor of this State to disapprove any such request for your temporary custody but you cannot oppose delivery on the grounds that the Governor has not affirmatively consented to or ordered such delivery."

At the bottom of the Form is an acknowledgment by petitioner that she received it on February 11, 2008, and further that she did not wish to pursue her rights under the IAD "at this time."

On June 24, 2008, a request for temporary custody pursuant to CPL §580.20(IV) was signed by the State's Attorney for the State of Connecticut, Judicial District of Stamford/Norwalk ("State Attorney"), seeking the transfer of petitioner pursuant to the IAD. Petitioner now challenges this request for her transfer by filing the instant proceeding for a writ of habeas corpus. In opposition thereto, the respondents contend, inter alia, that petitioner's application should be denied in its entirety because she has waived her right to contest transfer under the IAD.

LEGAL ANALYSIS

I.PETITIONER'S CHALLENGE TO THE WESTCHESTER COUNTY

DISTRICT ATTORNEY'S RESPONSE TO THE PETITION

As a preliminary matter, the Court must address petitioner's challenge to the Westchester County District Attorney's authority to respond to this habeas corpus petition on behalf of respondents. By letter dated October 7, 2008, the State of New York Office of the Attorney [*3]General ("Attorney General's Office") adopts by reference "the statements and arguments set forth in the Affidavit of Assistant District Attorney John J. Sergi, dated September 29, 2008, and any exhibits annexed thereto," as well as "the memorandum of law submitted therewith."

Petitioner correctly argues that the Attorney General's Office has a statutory obligation to "defend all actions and proceedings in which the state is interested and [has] charge and control of all legal business of the departments and bureaus of the state" (Executive Law §63[1]). However, the Attorney General's Office has adopted the responsive papers filed by the Westchester County District Attorney's Office, which office is a necessary party in a proceeding pursuant to CPLR Article 70 (see CPLR §7009[a][3]).[FN1] Based upon the representations in the letter, as well as petitioner's representations in the reply affirmation that this letter serves to dispose of this issue "not on the merits" but rather "in the interest of judicial economy," the Court now turns to the issues raised in the petition and the return to the writ.

II.RESPONDENT'S CLAIM THAT PETITIONER HAS WAIVED HER

RIGHT TO CHALLENGE THE REQUEST FOR TEMPORARY CUSTODY

In New York State, the IAD has been codified in CPL §580.20. As stated in CPL §580.20(I), the purpose of the IAD is "to encourage the expeditious and orderly disposition of [charges outstanding against a prisoner] and determination of the proper status of any and all detainers based on untried indictments, informations or complaints." The IAD accomplishes these purposes by enumerating certain procedures which are to be followed in prisoner transfers (United States v. Scheer, 729 F.2d 164, 170 [2d Cir. 1984]).

Article III of the IAD provides the prisoner-initiated procedure, while Article IV provides the procedure by which the prosecutor in the receiving state may initiate the transfer (Cuyler v. Adams, 449 U.S. 433, 444, 101 S. Ct. 703, 66 L. Ed. 2d 641 [1981]). In either case, however, the provisions of the IAD begin only after a detainer is filed [FN2] (People v. Reilly, 136 AD2d 355, 360, 527 NYS2d 234, appeal denied 72 NY2d 865, 532 NYS2d 515, 528 NE2d 905).

Once a detainer is lodged with the penal institution where the prisoner is serving a term of imprisonment, a prosecutor in the receiving state is entitled to have the prisoner made available upon presentation of a written request for temporary custody (CPL §580.20[IV][a]). The governor of the sending state is then given 30 days during which he or she may refuse to release the prisoner "either upon his [or her] own motion or upon motion of the prisoner" (CPL §580.20[IV][a]). The receipt of such a request then triggers an obligation on the part of the penal institution where the prisoner is being held to advise the prisoner that such a request has been made. The penal institution is further required to advise the prisoner, in writing, of his or her rights to counsel, to make representations to the governor within 30 days, and to contest the [*4]legality of his or her delivery (CPL §580.20[IX][7]).

In accordance with the provisions of CPL §580.20(III)(c), on February 11, 2008, petitioner was advised of the existence of the detainer, as well as her right to request a final disposition of the matter. She was also advised of the possibility that the prosecuting officer of the jurisdiction where the untried indictment, information or complaint was pending could initiate proceedings to obtain a final disposition thereof. Respondents claim that petitioner's indication on the Form that she did not wish to pursue her rights under the IAD constitutes a waiver of her challenge to the request for temporary custody, which request had not been made at the time the Form was signed. Petitioner claims that there is no provision in the law for waiving the right to contest delivery to another state under the IAD.

Since the IAD "was intended to be a grant of consent under the Compact Clause, and because the subject matter of the [IAD] is an appropriate subject for congressional legislation, * * * the [IAD] is a congressionally sanctioned interstate compact the interpretation of which presents a question of federal law" (Cuyler v. Adams, 449 U.S. at 442). Pursuant to the applicable federal case law, the rights at issue under the IAD are statutory rights, not rights guaranteed by the Constitution and, therefore, the "knowing and intelligent" standard is not the proper test for determining whether or not there has been a waiver (United States v. Lawson, 736 F.2d 835, 838-839 [2d Cir. 1984]; see also United States v. Scheer, 729 F.2d 164, 170 [2d Cir. 1984]).

However, even applying the nonconstitutional standard, no waiver has occurred since there is no evidence that petitioner ever intended to relinquish her rights to challenge the State Attorney's request for final disposition pursuant to CPL §580.20(IV). The Form executed by petitioner on February 11, 2008 clearly indicates that she did not wish to avail herself of the right to demand that the State of Connecticut provide her with a speedy trial pursuant to the provisions of CPL §580.20(III). In contrast, there is no indication in the record that anyone at the Bedford Hills Correctional Facility ever advised petitioner, in writing, that a request for temporary custody had been made. Nor is there any indication that she was advised, in writing, of her rights to an attorney, the right to make representations to the governor within 30 days or to contest the legality of her delivery after the request for temporary custody was made (see CPL §580.20[IX][7]).

III.PETITIONER'S RIGHT TO A HEARING

A determination having been made that petitioner has not waived her right to contest the request for temporary custody, the Court now turns to her application for a hearing on the matter.

Pursuant to the Supreme Court's decision in Cuyler, prisoners transferred pursuant to the provisions of the IAD "are not required to forfeit any pre-existing rights they may have under state or federal law to challenge their transfer to the receiving State," and are entitled to a pre-transfer hearing "in which they can bring a limited challenge to the receiving State's custody request" (Cuyler v. Adams, 449 U.S. at 499-450).[FN3] In such a challenge, the scope of a court's [*5]inquiry is limited to determining whether: 1) the documents are facially sufficient; 2) the petitioner has been charged with a crime in the demanding state; 3) the petitioner is the person named in the extradition request; and 4) the petitioner is a fugitive from the demanding state (see Michigan v. Doran, 439 U.S. 282, 99 S. Ct. 530, 58 L. Ed. 2d 521; People ex rel. Kokell v. Dooley, 158 AD2d 568, 551 NYS2d 335, appeal denied 76 NY2d 701, 557 NYS2d 878, 557 NE2d 114; People ex rel. Kotch v. District Attorney, Kings Co., 170 AD2d 632, 566 NYS2d 404; People ex rel. Angell v. Scoralick, 265 AD2d 354, 697 NYS2d 60).

Here, the documents are facially sufficient and meet all of the requirements of a proper request for temporary custody (see CPL §580.20[V][b][1],[2]). Under Connecticut law, felony prosecutions may be commenced either by an indictment or by filing a complaint or information (CGSA §54-45), and a Grand Jury indictment is required only where the punishment may be death or life imprisonment (State v. Jones, 153 Conn. 451, 457, 217 A.2d 691). In all criminal cases, a judge of the Connecticut Superior Court is authorized to issue an arrest warrant upon the application by a prosecutorial official if the judge "determines that the affidavit accompanying the application shows that there is probable cause to believe that an offense has been committed and that the person complained against committed it" (CGSA §54-2a[a][1]).

In the present case, a judge of the Connecticut Superior Court issued the warrant for petitioner's arrest after concluding that there was "probable cause to believe that an offense [had] been committed and that the [petitioner] committed it." Since a "neutral judicial officer" of the receiving state has determined that probable cause exists, this Court is without power to review the determination (see Michigan v. Doran, 439 U.S. at 290). Furthermore, the Court is precluded from considering the sufficiency of the pleading established in the receiving state (see People ex rel. Hall v. Casscles, 51 AD2d 623, 378 NYS2d 813, appeal dismissed 38 NY2d 1006, 384 NYS2d 442, 348 NE2d 918).

As to the second and third factors, petitioner concedes in the reply affirmation that the respondents "have made a prima facie showing of identity that the defense cannot rebut with conclusive evidence," and does not contest the fact that she has been charged with a crime in the receiving state.

Turning now to the fourth and final factor, petitioner denies that she was present in Connecticut at the time of the commission of the crime. Thus, a hearing is required to resolve the factual issue of whether petitioner was present in the receiving state when the crime charged was committed (see People ex rel. Collins v. Braun, 57 NY2d 714, 454 NYS2d 704, 440 NE2d 789; People ex rel. Torre v. Warden, House of Detention for Men, Dept. of Corrections, 35 AD2d 530, 313 NYS2d 143; People ex rel. Degina v. Delaney, 53 AD2d 880, 385 NYS2d 332; People ex rel. Pata v. Lindemann, 75 AD2d 654, 427 NYS2d 445, appeal dismissed 50 NY2d 801, 430 NYS2d 1025, 407 NE2d 1353). At such hearing, respondents will bear the burden of making a prima facie showing that petitioner was indeed present in Connecticut at the time in question. If that burden is met, it is well settled that the burden then shifts to petitioner to prove [*6]by conclusive evidence that she was in fact not in the demanding state at the time of the alleged crime (see Michigan v. Doran, 439 U.S. 282; People ex rel. Strachan v. Colon, 77 NY2d 499, 568 NYS2d 895, 571 NE2d 65; People ex rel. Kokell v. Dooley, 158 AD2d 568; People ex rel. O'Connell v. Sheriff of Co. of Putnam, 160 AD2d 828, 554 NYS2d 79 People ex rel. Estrella v. Brown, 302 AD2d 618, 756 NYS2d 257).

Accordingly, it is hereby

ORDERED, that petitioner's application is granted to the extent that a hearing as to the factual issue raised in her papers regarding her presence in the receiving state at the time the alleged crime was committed will be conducted on November 6, 2008 at 2:00 p.m.; and it is further

ORDERED, that a representative from both the Westchester County District Attorney's Office and the Attorney General's Office must be present at the time of the hearing.

Dated: White Plains, New York

October 23, 2008

HON. LESTER B. ADLER

SUPREME COURT JUSTICE

THE LEGAL AID SOCIETY

OF WESTCHESTER COUNTY

Attorneys for Petitioner

One North Broadway, Ninth Floor

White Plains, New York 10601

BY: Diane T. Webster, Esq.

WESTCHESTER COUNTY DISTRICT

ATTORNEY'S OFFICE

111 Dr. Martin Luther King, Jr. Boulevard

White Plains, New York 10601

By: John J. Sergi, Esq.

HON. ANDREW M. CUOMO

Attorney General, State of New York

101 East Post Road

White Plains, New York 10601

By: Dian Kerr McCullough, Esq. Footnotes

Footnote 1:CPLR §7009(a)(3) provides that where a detention is by virtue of a mandate, a court may not adjudicate the issues presented until written notice of the time and place of the hearing has been served on the district attorney of the county in which the person is detained.

Footnote 2:"A detainer is a notice filed with an institution in which a particular prisoner is incarcerated, advising that "[s]he is wanted to face pending criminal charges in another jurisdiction, and requesting that the prisoner either be held for the other jurisdiction's prosecutors or that these prosecutors be notified when the prisoner's release is imminent" (United States v. Paredes-Batista, 140 F.3d 367, 372 [2d. Cir. 1998]).

Footnote 3:In Cuyler, petitioner argued that while the IAD does not explicitly provide for a pre-transfer hearing, prisoners who are involuntarily transferred under Art. IV are entitled to greater procedural protections than those who initiate the transfer procedure under Art. III (Cuyler v. Adams, 449 U.S. at 444-445). The Supreme Court found support for respondent's contention that a pre-transfer hearing was required in the language of Article IV which provides:

"Nothing contained in this Article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery." (Id. at 445).