People v Pisciotti
Annotate this CaseDecided on July 14, 2004
County Court, Wayne County
The People of the STATE OF NEW YORK, on Relation of DALE R. AMSLER, Petitioner,
against
RICHARD J. PISCIOTTI, as Sheriff of the County of Wayne, Respondent.
04-FWS
RONALD J. VALENTINE, ESQ., Wayne County Public Defender (JAMES S. KERNAN, ESQ., Assistant Public Defender, of counsel), Attorney for petitioner. RICHARD M. HEALY, ESQ., Wayne County District Attorney (MARY ANN KOLB, ESQ., Assistant District Attorney, of counsel), Attorney for Respondent Pisciotti.
John B. Nesbitt, J.
Dale Amsler, an inmate in the Wayne County Jail, applies for a writ of habeas corpus to effect his release from the custody of respondent County Sheriff. In doing so, petitioner challenges the legality of his detention, which respondent Sheriff justifies as compliant with Article 570 of the Criminal Procedure Law, otherwise known as the Uniform Criminal Extradition Act. The New York Department of Corrections requests the Sheriff to deliver Mr. Amsler to representatives of the Larimer County Sheriff from Fort Collins, Colorado, for return to that state to answer pending criminal matters. For the reasons that follow, the writ sought must be denied, and the petition dismissed.
The immediate cause of the confinement of petitioner Amsler in the County Jail is the warrant issued June 15, 2004 by New York Governor Pataki for the petitioner's arrest. That warrant directs respondent Sheriff to arrest and secure the petitioner based upon demand of Colorado Governor Owens, dated May 27, 2004. As appears from the warrant, demand, and respective supporting papers, petitioner Amsler was convicted and then sentenced on April 10, 2003, of the felony under Colorado Law known as fraud by check. This conviction was apparently based upon $360 in bad checks petitioner wrote to the T-Bar Inn in Wellington, Colorado, in conjunction with which petitioner was also charged with possession of drug paraphernalia when the investigation led to petitioner's vehicle in the tavern's parking lot. Petitioner was sentenced to probation for a one year period.
On November 12, 2003, the District Attorney of the District where petitioner was to serve his Colorado probation applied to revoke petitioner's probation, alleging that during the month following his sentencing, petitioner committed in Colorado the felonies of criminal impersonation and possession of methamphetamine, as well as misdemeanor theft. Petitioner was charged with [*2]these offenses, but failed to appear in the Colorado District Court to answer them. A bench warrant issued. It was also alleged that petitioner failed to contact the county probation officers to commence his probation supervision, and failed to inform them of his residence, telephone number, or any other means by which he could be contacted..
The May 27, 2004, demand from the Colorado Governor alleges that petitioner Amsler is a fugitive from Colorado justice by reason of his violation of probation. The petitioner was taken into custody by the County Sheriff based upon the New York Governor's warrant founded upon the Colorado demand. The legal authority for New York officials to honor an extradition demand from another State derives from CPL Article 570, known as the Uniform Criminal Extradition Act. This enactment sets up a system of procedures and protocols that must be followed before an extradition demand can be honored. When a person is arrested upon a warrant issued by the New York Governor pursuant to the Act, CPL §570.24 confers upon the person so arrested certain rights, including the right to seek a writ of habeas corpus.
Petitioner has complied with this provision in bringing his application for a writ of habeas corpus. He resists extradition based upon alleged deficiencies in the documents supplied by Colorado to support the New York warrant. Petitioner does not contest the sufficiency of those documents in terms of their substance, but their compliance with the requirement of CPL §570.08 that the documents "be authenticated by the executive authority making the demand [for extradition]." Here, the Colorado Governor in his May 27th "Requisition Demand and Agent Authorization" states that he "certif[ies the documents attached to the demand] are authentic under the laws of the State of Colorado." Petitioner argues that use of the term "authenticated" in CPL §570.08 requires more than this recitation. Petitioner contends that the meaning and substance of the authentication requirement of CPL §570.08 must be found in CPLR 4540. This section is part of CPLR Article 45, entitled Evidence, which contains statutory rules dictating certain aspects of the law of evidence for New York courts to follow in civil proceedings, as well as criminal actions to the extent allowed in CPL §60.10. CPLR 4540 requires, among other things, that any copy must be attested as correct by the officer having custody of the original record, and in addition, for copies of out of state records, the such attestation be accompanied by a certificate of either (1) a judge of a court of record of the district or political subdivision in which the record is kept or (2) a public officer having a seal of office and having official duties in that district or political subdivision with respect to the subject matter of the record (CPLR 4540[a][c]). The certificate must be affixed with the seal of the certifying court or officer, and recite that the attesting officer has legal custody of the record and that the signature of the attesting officer is believed to be genuine.
The documents forwarded with the Colorado Governor's demand and certified in that demand as authentic consist of copies of an application for requisition, a warrant from District Court, Laramour County, Colorado, an order for a warrant, a motion to revoke probation with supporting deposition, a verification and other supporting deposition, minute orders, statement of plea disposition, information, and other documents relating to the original Colorado criminal prosecution against petitioner, including fingerprints and a mug shot. The Colorado Governor does not attest that he is the custodian of the original records and that the copies are accurate reproductions, nor is his authentication accompanied by a certification by a judicial or other public officer stating that the Governor is the custodian of these records and the Governor's signature is genuine. Further, the copies do not purport to be authenticated by any other state or local officer of the State of Colorado. [*3]
Petitioner is correct that the Colorado Governor's authentication of these documents does not comply with the requirements of CPLR 4540 so to be admissible in judicial proceedings in this State (see People v James, 4 AD3d 774 [4th Dept 2004]. However, that is not the issue here. The issue is whether the documents are sufficiently authenticated to support the issuance of a warrant by the New York Governor under CPL §570.18. CPL §570.08 requires no more than that the necessary documents "be authenticated by the executive authority making the demand" for the warrant. It does not prescribe any particular form or content of that authentication. In People ex rel. Morlee v Waldron (52 AD2d 1007, 1008 [3rd Dept 1976], the Appellate Division found sufficient compliance with the authentication requirement of CPL §570.08 where the governor of the state seeking extradition signed the demand and simply recited that the supporting documents "are hereby certified to be authentic."
There has been no authority cited to this Court that Morlee is not good law, that there is a basis to distinguish it, or that the issue should be revisited. That Morlee has represented the law on this issue for almost 30 years, and that neither the State Legislature nor the courts have sought to disturb its holding, are strong grounds for this Court to follow it. Justice Brandeis once observed, "in most matters it is more important that the applicable rule of law be settled than that it be settled right" (Burnet v Coronado Oil & Gas Co., 285 US 393, 406 [1932, Brandies J., dissenting]. This is one of those cases. There are no constitutional impediments to the Uniform Criminal Extradition Act prescribing a less strict standard of document authentication for purposes of that Act than the State of New York chooses for use in its judicial proceedings (see People ex rel. Kotch [Russo] v District Attorney of Kings County, 170 AD2d 632 [2nd Dept 1991]..
According, the application of petitioner for a writ of habeas corpus is denied.
Dated: July 14, 2004
Lyons, New York__________________
John B. Nesbitt
County Court Judge
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