People v Wimms

[*1] People v Wimms 2020 NY Slip Op 20120 Decided on May 27, 2020 Criminal Court Of The City Of New York, Queens County Dunn, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 27, 2020
Criminal Court of the City of New York, Queens County

THE PEOPLE OF THE STATE OF NEW YORK

against

RASHA WIMMS, Defendant.



Docket No.: FG-300218-20QN



APPEARANCES OF COUNSEL

Queens Defenders (Jonathan Latimer, Esq.), Kew Gardens, for the Defendant

Melinda Katz, District Attorney (George Deluca-Farrugia of counsel), Kew Gardens, for the People
Scott A. Dunn, J.

I. Introduction

Article 570 of the New York State Criminal Procedure Law, which relates to extradition, is a statute which has largely avoided judicial scrutiny. Indeed, this case is a matter of first impression. Recently, however, this Court has been called upon to consider various aspects of the statute. For example, in People v Luciano, this Court concluded that the People could not enforce a waiver of extradition under CPL 570.50 because it was not executed knowingly, intelligently, and voluntarily (66 Misc 3d 884, 895 [Crim Ct Queens County 2020]). Accordingly, the People were directed to obtain a Governor's Warrant, which is required when a defendant does not waive extradition.

And then, in People v Frank, this Court concluded that the People could not use a waiver of extradition under CPL 570.50 to detain a defendant until the outcome of his pending criminal case in New York State, because he had not knowingly, intelligently, and voluntarily consented to that detention (2020 NY Slip Op 20087 [Crim Ct Queens County 2020]). Such detention is permitted by CPL 570.44 when authorized by the Governor. In Frank, the People had attempted to use CPL 570.50 to waive that provision.

In the instant matter, as in Frank, the People sought to secure a waiver of extradition under CPL 570.50 and Defendant's consent to his detention pending the outcome of all outstanding criminal matters in New York State, effectively waiving CPL 570.44. When that effort proved unsuccessful, the People asserted that they had the right not to accept a waiver under CPL 570.50 and could bypass that statute by seeking a Governor's Warrant.

The People maintain that they have the right to seek defendant's consent to detention pending the outcome of all outstanding criminal matters in New York State, effectively waiving CPL 570.44 as part of the CPL 570.50 waiver of extradition process. The People further claim that if a waiver of CPL 570.44 is not obtained, a defendant issued a fugitive complaint with a pending criminal matter in New York State can be held under this statute without formal action and without a written instrument providing a defendant with notice that he is being held under CPL 570.44.

As a threshold matter, it is the Court that has the unfettered discretion to accept a waiver pursuant to CPL 570.50 and further, a defendant has a statutory right to seek such a waiver. Accordingly, the People do not have a right to reject that waiver or to require the defendant to consent to detention pursuant to 570.44, as a prerequisite for that waiver.

Moreover the People do not even have the right to seek a waiver of CPL 570.44 as part of the CPL 570.50 waiver of extradition process. Rather, such a waiver of CPL 570.44 is not authorized by statute. Accordingly, detention under CPL 570.44 may only occur when authorized by the Governor, and then, only if evidenced by a written instrument.

In the final analysis, it is clear that a roadmap is needed for cases such as these to ensure clarity. This decision attempts to provide such a roadmap.

II. Procedural History

On May 6, 2020 the Defendant appeared in Criminal Court, County of Queens, State of New York, for arraignment on two dockets. The first, CR-008749-20QN, charged the defendant with Penal Law § 265.03 (3), and other related charges. The second docket, the subject of this decision, is a fugitive complaint filed under FG-300218-20QN seeking the Defendant's return to Pennsylvania on the basis of a violation of parole.

At the arraignment proceeding, Defendant sought to execute a waiver of extradition pursuant to CPL 570.50. The Defendant was informed by the People of his right to the issuance of a Governor's Warrant and to file a petition for a writ of habeas corpus challenging his extradition (tr at 8, lines 16-21). The People then posited the following question to the Defendant: "[d]o you understand that you will not be returned to Pennsylvania until up to 30 days after such time as you have disposed of all open criminal matters within New York State?" (tr at 8, lines 23-25; at 9, line 1). In response, the Defendant requested that the People "[e]xplain that again" (tr at 9, line 2). The Court then challenged the People on its inclusion of this statement in its colloquy with Defendant [FN1] . The People responded by declaring that they were no longer "willing to accept a waiver in this case. . . ." (id. lines 20-22). The People further declared that they "have the right not to accept that waiver, and we are indicating for the record, that we will not accept that waiver" (tr at 10, lines 2-4).

This Court filed an interim order on May 11, 2020, seeking briefing on this issue. The parties' responses were filed on May 18, 2020.

III. The Parties' Arguments

In their response, the People concede that they cannot blanketly refuse to accept a waiver under CPL 570.50. Indeed, the People assert that "[a]t no time did the People state that we had to consent to the proposition of a defendant waiving extradition" (People's Response at 1). Rather, the People assert that the issue involving the waiver related solely to their concern that it be knowing, voluntary, and intelligent (id. at 1-2).

The People further assert, however, that a request to waive CPL 570.44 is encompassed [*2]within the CPL 570.50 waiver. The People base this position on language within CPL 570.50, which allows for a waiver of "all other procedure incidental to extradition proceedings" (People's Response at 3). The People assert that the Defendant's detention pursuant to CPL 570.44 is incidental to the ultimate extradition (id.). Finally, the People argue that where such a waiver is not obtained, no written instrument providing notice of the Governor's action under CPL 570.44 is required (id. at 4).

On the other hand, Defendant argues that the People's consent is not a legal prerequisite to the Court's acceptance of a waiver of extradition pursuant to CPL 570.50 (Defendant's Affirmation at 4-5). Defendant further asserts that CPL 570.50 does not include any provision regarding the necessity of Defendant's consent to detention, and that any additional requirements outside the text of the statute cannot be read in (id. at 6-7).

IV. Pursuant to CPL 570.50, A Defendant Has The Right To A Waiver Of Extradition And The Court Has Exclusive Authority To Accept The Waiver Request

A. Statutory Framework [FN2]

The Uniform Criminal Extradition Act ("UCEA") was enacted "to implement the constitutional requirements of the Extradition Clause and to set forth extradition procedures" (Luciano at 886; People v Fanning, 27 Misc 3d 740, 746 [Crim Ct Queens County 2010]), citing 31A Am Jur 2d Extradition § 11; see 18 USCA § 3182). The UCEA "sets forth the procedure for arrest and delivering up of a person charged with a crime committed in one state or territory of the United States who presently is at large in another state or territory of the United States" (Fanning at 746, citing Peter Preiser, Practice Commentary, McKinney's NY Crim Proc Law 570.02). In New York, the UCEA is codified in Article 570 (see CPL 570.02; Fanning at 746), Pursuant to CPL 570.32, a complaint may be filed with a local criminal court seeking a defendant's extradition to another jurisdiction. A defendant is entitled by statute to the issuance of a warrant by the Governor of the State of New York and to challenge his or her extradition by filing a writ of habeas corpus (CPL 570.18; 570.20; 570.24). These provisions must be strictly complied with as the consequence of non-compliance may result in the filing of felony charges (CPL 570.26).

In cases where there is a requisition of a Governor's Warrant, a defendant can be incarcerated for a period of thirty-days pending requisition of the Governor's Warrant (CPL 570.36). The statute provides that if the Governor's Warrant is not provided within thirty days, the criminal court may "discharge him or may recommit him for a further period of sixty days, or for further periods not to exceed in the aggregate sixty days." (CPL 570.40). Upon requisition of the Governor's Warrant, the defendant may thereafter be detained for an additional thirty-days in order to facilitate removal to the demanding state. If the demanding state has not taken the defendant into its custody before the expiration of that thirty-day period, the defendant must be released from custody (Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, CPL 570.36, citing 18 USCA § 3182 ["After receipt of the Governor's warrant [imposition of bail pursuant to CPL 570.38] is no longer applicable and if an officer of the demanding state has not arrived to receive custody within thirty days from receipt or [sic] the Governor's warrant federal law requires that the fugitive must be discharged from custody."]).

However, pursuant to CPL 570.50, a defendant may waive both the issuance of a Governor's Warrant and the right to file a petition for a writ of habeas corpus challenging the extradition itself and the legality of his arrest. In such circumstances, the defendant must be informed "of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus as provided for in section 570.24" (CPL 570.50). Under such circumstances, CPL 570.50 provides that "[t]he judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state . . ." [*3](emphasis added). Indeed, whether a Governor's Warrant is issued or the requisition of the warrant waived, the statute contemplates "the prompt return of a fugitive as soon as the state from which [he] fled appropriately demands [his] return" (People ex rel. Little v Ciuros, 44 NY2d 825, 829 [1978]; 22 Carmody-Wait 2d § 139:70 ["Extradition is the prompt return of an accused to the place where he or she allegedly committed a crime to stand trial."] [emphasis added]).

Finally, and relevant here, CPL 570.44 specifically provides for a track independent of the above if a criminal prosecution has been instituted against such person under the laws of New York State and is pending. Under that section, "the governor, in his discretion, may either surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this state." (CPL 570.44 [emphasis added]; see People v Maldonado, 28 Misc 3d 649, 651 [Sullivan County Ct 2010]). In analyzing the statutory framework of Article 570, the critical role of the Governor cannot be overemphasized. Indeed, consistent with the central role of the Governor regarding interstate matters such as these, Article 570 provides that it is the "duty of the governor" to ensure the effective enforcement and administration of this statute (see CPL 570.06 [emphasis added]; see People v Harris, 30 Misc 3d 483, 484 [Cattaraugus County Ct 2010] [Pursuant to CPL 570.44, "only the Governor [has] the authority to order extradition in a case where the fugitive has criminal charges pending in New York]).

B. CPL 570.50

Of particular relevance in the instant matter is CPL 570.50. The full text of CPL 570.50 reads:

Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole, may waive the issuance and service of the warrant provided for in sections 570.18 and 570.20 and all other procedure incidental to extradition proceedings by executing or subscribing in the presence of a judge of any court of record within this state a writing which states that he consents to return to the demanding state, provided, however, that before such waiver shall be executed or subscribed by such person it shall be the duty of such judge to inform such person of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus as provided for in section 570.24.If and when such consent has been duly executed it shall forthwith be forwarded to the office of the secretary of state of this state and filed therein. The judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state, and shall deliver or cause to be delivered to such agent or agents a copy of such consent. Provided, however, that nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this state

C. Statutory Construction

Fundamental to the practice of statutory interpretation is the understanding that where the words of a statute are clear and unambiguous they should be literally construed (People v Munoz, 207 AD2d 418, 419 [2d Dept 1994], lv denied 84 NY2d 938 [1994]; NY Stat Law § 94 ["The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction."]; Matter of Cristo Bros., 97 AD2d 274, 275 [3d Dept 1983], affd 64 NY2d 975 [1985] ["it is well settled that if the language of a statute is clear, the language must be applied as written and there is no reason to resort to rules of construction or extrinsic aids"]; Drelich v Kenlyn Homes, Inc., 86 Ad2d 648, 649 [2d Dept 1982] [Courts possess constitutional obligation to "determine the expressed will of the Legislature, and such [*4]legislative intent must be first sought in the language of the statute under consideration"]; People v Torres, 109 Misc 2d 800, 803 [Crim Ct Bronx County 1981] ["A statute should not be extended by construction beyond its express terms or the reasonable implications of its language"]).

At the outset, the central role of the Court regarding implementation of CPL 570.50 is evidenced by the plain language of that statute's text. Indeed, the statute clearly provides the Court with exclusive authority to accept the waiver. Indeed, the statute plainly provides that the waiver is effected by "executing or subscribing in the presence of a judge of any court of record within this state a writing" and that it is the "duty of such judge to inform such person of his rights . . . in section 570.24" (CPL 570.50). The statute then goes on to further require that "[t]he judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state, and shall deliver or cause to be delivered to such agent or agents a copy of such consent" (id.). Accordingly, a judge's singular role here involves not only the statutory requirement to inform the defendant of the rights he is waiving, as provided for in CPL 570.24, but also the discretion to accept such waiver. The judge is also charged with ensuring proper service and execution of the waiver.

Also plainly evidenced by the statutory text are the rights of the defendant. Indeed, the text of CPL 570.50 provides a defendant the opportunity to dispense with formal extradition procedures by written waiver of procedural formalities. Specifically, the statute provides that a defendant may waive the issuance and service of a Governor's warrant (CPL 570.50 [emphasis added]). Indeed, the singular precondition articulated is that the defendant first be informed by the Court of his statutory rights pursuant to CPL 570.24 (id.). Accordingly, the plain language of the statute provides a defendant with the right to a waiver of extradition subject to that precondition.

Finally, the role provided to the People concerning this statute is similarly evident. Indeed, nowhere in CPL 570.50 are the People referenced in terms of the application, issuance, and effectuation of the waiver (see Matter of Hoerger v Spota, 109 AD3d 564, 568 [2d Dept 2013], affd 21 NY3d 549 [2013], citing NY Stat Law § 240 ["[W]here a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded"]).

Moreover, an analysis of other statutes within the same Criminal Procedure Law further reinforces the above. Indeed, such analysis reveals that where the People's consent is a legal requisite, or even permissible, necessity is expressed unequivocally within the plain text of the statute itself. For example, where a defendant seeks to waive indictment in favor of prosecution by a superior court information, the consent of the People is an explicit prerequisite to the defendant's waiver (CPL 195.10 [1] [c]). And consent is specifically required in CPL 170.55 regarding adjournments in contemplation of dismissal and, likewise, in certain sections of CPL 170.56, where the court is prohibited from granting defendant's motion for an adjournment in contemplation of dismissal involving marijuana without the consent of the district attorney under specified circumstances (CPL 170.55 [1]; 170.56 [1] [d], [e]). Similarly, a defendant's desire to enter a plea of not responsible by reason of mental disease or defect explicitly requires the consent of the People (CPL 220.15 [1]).

Conversely, in statutes which confer to the defendant the authority to waive some right but are silent as to the necessity of the People's Consent, the courts have not gone beyond the text of the statute to imply the necessity of such consent when evaluating the validity of a challenged waiver. For instance, a defendant "may at any time before trial waive a jury trial" so long as the defendant receives "the approval of the court." (CPL 320.10). A defendant's waiver must be accepted by the court provided that the court determines that the waiver "is tendered in good faith and is not a stratagem to procure an otherwise impermissible procedural advantage . . . and, second, that the defendant is fully aware of the consequences of the choice he is making." (People v Duchin, 12 NY2d 351, 353 [1963]). It follows from this, that the legality of the defendant's waiver is contingent on the court's review and acceptance of the waiver and not the [*5]People's. As this statute does not explicitly provide for the People's consent as a prerequisite to a jury trial waiver, the courts, accordingly, have not inserted such a requirement.

Likewise, and in marked contrast to both CPL 170.55 and certain subsections of CPL 170.56, the consent of the People is not necessary for an adjournment in contemplation of dismissal pursuant to CPL 170.56. And indeed the People could not argue that it was, as the statute directs the defendant to make an application directly to the Court.

Finally, the Court's analysis is further supported by a comparison of the Federal Rules of Criminal Procedure and those of New York State. As noted in People v Pasaro, Rule 23 of the Federal Rules of Criminal Procedure states that a defendant is entitled to a jury trial and that a trial must commence by jury unless, inter alia, the government consents to such a waiver (79 Misc 2d 504, 506 [Crim Ct Bronx County 1974]; Fed Rules Crim Pro rule 23 [a] [2]). Whereas, New York State's Criminal Procedure law is conspicuous in its omission of such a requirement (see CPL 320.10). In reaching its decision and in support of its conclusion that the defendant was entitled to waive trial by jury despite the additional burden such a request would place on the People in trying a multi-defendant case in separate trials, the Pasaro court pointed to this distinction between the Federal and State rules of criminal procedure. In its decision the Pasaro court opined that "[i]t is obvious, therefore, that New York State has deliberately taken another route" apart from the federal courts in determining whether the People's consent is a prerequisite to a valid waiver (Pasaro at 506).

Accordingly, based on the plain meaning of the statute, a defendant has the right to seek a waiver under CPL 570.50 and the Court has exclusive authority to issue that waiver. It follows that the People have neither the authority to refuse to accept a waiver under CPL 570.50 nor the ability to require their consent before its issuance. And in this regard, it is for the Court, and not the People, to determine whether a waiver is knowing, intelligent, and voluntary and moreover, to fashion the process for such determination.

V. The People May Not Seek Defendant's Consent To Detention, Effectively Waiving CPL 570.44, As Part Of The 570.50 Waiver Process

In Frank, this Court concluded that the Defendant had not knowingly, intelligently, and voluntarily consented to his detention pending the outcome of all criminal proceedings in New York State and furthermore had not waived CPL 570.44 (Frank at 6-7). The Court further declared, without formally holding, that "it is this Court's sense that a defendant could not waive the Governor's authority, vested in CPL 570.44, to hold [a defendant] pending disposition of an open criminal matter in this State." (id. at 8).

In the instant case, according to the People as set forth in their response, their questioning of the Defendant was representative of their efforts to comply with this Court's holding in Frank, and ensure that any waivers were knowing, voluntary, and intelligent (People's Response at 4). However, despite this Court's expression in Frank, that a waiver of CPL 570.44 relating to detention pending the outcome of outstanding criminal matters should not be part of the CPL 570.50 waiver of extradition process, the People elected here to continue in their effort to securethe Defendant's consent and the concurrent waiver of CPL 570.44 [FN3] . It is now the holding of this Court that the law does not permit the People to do so.

Consistent with CPL 570.06, and the entirety of the statutory framework, CPL 570.44 is "structured on the central and critical role of the Governor and is predicated on action taken by him or her. Indeed, the statute specifically provides that the defendant can only be held pending prosecution if the Governor exercises his or her discretion to do so." (Frank at 4). And that such authority be exercised by the Governor, is particularly appropriate here, given the significance of [*6]the issues at stake — interstate comity and liberty (id. at 5). As articulated in Frank and reiterated here, this is why it is only the Governor who can issue a Governor's Warrant (id. at 4; see CPL 570.18). In fact, the People appear to have acknowledged this in Frank, when they asserted that in the Defendant's case there, that where a waiver had been executed, action by the Governor is necessary as it is the "Governor [who] will determine if the defendant is to be held . . . on those pending charges" (Frank at 5). Indeed, CPL 570.44 does not provide for a waiver of its provisions.

Rather, waivers of the provisions of Article 570 are, in fact, explicitly set forth in CPL 570.50. That statute specifically provides for a waiver of the rights enumerated under CPL sections 570.18, 570.20, and 570.24, regarding a defendant's right to the issuance of a Governor's Warrant and to obtain a writ of habeas corpus. However, conspicuously absent from the text of CPL 570.50, is any language relating to CPL 570.44. Indeed, CPL 570.50 contains no language whatsoever which speaks of pending criminal matters and detention. Rather, and to the contrary, it speaks of the removal from the jurisdiction "forthwith" (CPL 570.50 [emphasis added] ["The judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state "]).

The People assert that CPL 570.50 also provides for a waiver of CPL 570.44 based on the language in the statute which provides that an individual "may waive the issuance and service of the warrant provided for in sections 570.18 and 570.20 and all other procedure incidental to extradition proceedings" (People's Response at 3). The People contend that the determination by the Governor of whether to surrender or hold a fugitive is "incidental to extradition proceedings" (id.). In doing so, the People implicitly acknowledge that when seeking a waiver under CPL 570.50, that there must be language within CPL 570.50 which waives CPL 570.44.

However, the argument that the action of the Governor is "incidental" is readily dismissed. The term "incidental" is defined as "subordinate to something of greater importance, having a minor role" (Black's Law Dictionary [11th ed 2019], incidental). This Court finds that the Defendant's detention is not "incidental" or "subordinate" to extradition. Rather, it is related to a matter wholly independent of the extradition, namely Defendant's pending criminal matter in New York State. Moreover, it hardly plays a "minor role". Rather, detention in these matters is significant, in that it can be indefinite and often is protracted. Finally, it is wholly inconsistent with the language in CPL 570.50, which envisions removal from detention "forthwith", rather than such protracted and indefinite detention (see CPL 570.50).

Accordingly, under the statutory framework set forth in Article 570, the People may not use a waiver under CPL 570.50 to detain a defendant issued a fugitive complaint pending the outcome of other criminal proceedings in New York State. Indeed, as set forth above, the statute does not contemplate such a waiver [FN4] (see People v Mobil Oil Corp, 48 NY2d 192, 199 [1979] ["A statute or ordinance must be construed as a whole and its various sections must be considered together and with reference to each other."]; see NY Stat Law § 97 [All parts of a statute to be construed together]; see also NY Stat Law § 98 ["All parts of a statute must be harmonized with each other as well as with the general intent of the whole statute, and effect and meaning must, if possible, be given to the entire statute and every part and word thereof"]). Rather, because of the interstate comity and liberty interests, the statutory framework contemplates that such detention may only occur when authorized by the Governor exercising authority pursuant to CPL 570.44.

VI. A Defendant's Detention Under 570.44 Must Be Authorized In Writing By The Governor

The People argue that detention under CPL 570.44 need not be authorized in writing [*7](People's Response at 4). In support of their argument, the People cite to People v Harris, a case wherein the Court contacted the Governor's Extradition Office and was "told that a defendant was not to be rendered until they resolved any open criminal matters in New York." (People's Response at 4-5; Harris at 484). In the instant case, the People state that they have spoken to the Governor's Extradition Office and have been advised that "the Governor is exercising his discretion and that [defendant] is to be held and not to be rendered until he has completed all of his open charges in New York." (People's Response at 5).

This Court finds, and the People appear to concede, that it is only the Governor who can authorize detention under CPL 570.44. Indeed, this is not only because of the central role that the Governor plays in interstate matters such as these, but also, as acknowledged by the People, because of the significant liberty interests at stake here (People's Response at 2). Accordingly, there must be clear evidence that it is the Governor who has authorized detention.

CPL 570.44 is silent as to the issue of notice. The legislative history appears to be silent on this issue as well (see Uniform Criminal Extradition Act, Ch. 892 [L. 1936] recodified as 570.44, Ch. 996, § 1 [L. 1970]), and the parties have not brought to the Court's attention any history to the contrary. However, as acknowledged by the People, and in any event, beyond dispute, is that detention under CPL 570.44 clearly impacts a liberty interest. And that liberty interest can be unusually profound. Indeed, here, the detention is indefinite, as the defendant will be held for a considerable and undetermined amount of time until his criminal matter is completed. Further, under this statute, a defendant could be detained even when he is eligible for release on his criminal case pending in New York and on the fugitive matter pending in the other state. In fact, that is just the situation faced by the defendant in Frank, where the defendant was ordered released on his own recognizance on his New York case and was eligible for release or bail in Connecticut, but was being detained on the fugitive complaint. (Frank at 6).

It is well settled law, that due process demands notice and an opportunity to be heard when a liberty interest is effected (see People v David W., 95 NY2d 130, 138 [2000], citing Mathews v Eldridge, 424 US 319, 333-335 [1976] ["[P]rinciple at the heart of the due process guarantees in the United States and New York Constitutions is that when the State seeks to take life, liberty or property from an individual, the State must provide effective procedures that guard against an erroneous deprivation" and furthermore that "[t]he bedrock of due process is notice and opportunity to be heard"]; see People ex rel. Flores v Dalsheim, 66 AD2d 381, 387 [2d Dept 1979], citing Mathews at 349 ["Due process . . . requires that a person in jeopardy of serious loss be given notice of the case against him and the opportunity to meet it, according to the capacities and circumstances of those concerned"]).

The People contend that an oral statement made to an Assistant District Attorney from an individual in the Governor's Extradition Office who "handles" extraditions, is sufficient to place CPL 570.44 in effect (People's Response at 4-5). However, the statute here clearly provides that it is the Governor who must authorize detention. Further, the failure to provide formal notice to a defendant, beyond an oral assertion, provides a significant constitutional threat.

In this regard, whatever the minimum requirements would be to protect against that threat, the mechanism used by the People in this matter, a phone call from an individual handling extradition matters in the Governor's Extradition Office indicating that the Governor was exercising his discretion to hold the Defendant, falls far below it. Rather, to interpret this statute to avoid a serious constitutional threat, the Court concludes that if the People decide to detain a defendant under CPL 570.44 after the issuance of a fugitive complaint pending the outcome of outstanding criminal matters in New York State, that it must do so in writing, with clear evidence that the Governor has authorized that the defendant be held pursuant to that statute (see Zadvydas v Davis, 533 US 678, 699 [2001] ["interpreting the statute to avoid a serious constitutional threat, we conclude that, once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute."]). Indeed, such notice is standard in cases such as these where a [*8]defendant is being held pending disposition of matters relating to other cases [FN5] (see Executive Law § 259; CPL 410.40).

VII. Roadmap

Based on all of the above, and consistent with the need for a roadmap, the following procedure should be followed regarding fugitive complaints where the People seek to have a defendant held under CPL 570.44.

At arraignment, a defendant is presented with bifurcated options, either, pursuant to CPL 570.50, to waive the extradition proceedings by waiving the issuance and service of a Governor's Warrant and opportunity to obtain a writ of habeas corpus, or not to so waive. If a defendant with a pending New York criminal case chooses to waive extradition pursuant to CPL 570.50, the defendant's detention can be continued for thirty-days, for the purpose of removal (Frank at 8 [establishing thirty-day time period for removal after waiver of extradition where authorization from the Governor to hold defendant pursuant to CPL 570.44 is not obtained]) or for the issuance and service of written notice of hold pursuant to CPL 570.44 and authorized by the Governor. The CPL 570.44 notice can also be served at the arraignment.

If the defendant does not waive, then the defendant's detention may be continued for thirty-days pursuant to CPL 570.36 [FN6] , for the issuance and service of a Governor's Warrant. If the Governor's Warrant is issued and served, then the defendant can be held for thirty-days for execution of the Governor's Warrant or for the issuance and service of the CPL 570.44 notice (see People ex rel. Linaris v Weizenecker, 89 Misc 2d 814, 815 [Putnam County Ct 1977] [CPL 570.44 applicable only after issuance of Governor's Warrant]).

If a Governor's Warrant has not been secured within the initial thirty-day period, then an application for further detention can be sought under CPL 570.40 [FN7] . If the application is not granted, the defendant would be discharged on the fugitive complaint. If the application is granted, and the Governor's Warrant is then issued and served, the defendant can then be held for thirty-days following service of the Governor's Warrant, for the execution of the Governor's Warrant or for issuance and service of a CPL 570.44 notice signed by the Governor. If the Governor's Warrant is not secured, the defendant would be subject to discharge on the fugitive matter [FN8] .

VIII. Conclusion

Based on the above, the Defendant is entitled to an opportunity to execute a waiver of extradition pursuant to CPL 570.50 and the Court has the exclusive authority to accept that waiver and establish the procedures for consideration of the waiver application. Further, CPL 570.44 may not be waived as part of the CPL 570.50 waiver of extradition process. Rather, if pursuant to CPL 570.44 the People elect to hold a defendant pending the disposition of any outstanding criminal matter in New York State, it must do so through a written instrument [*9]evidencing authorization for the hold by the Governor.

Annexed hereto please find the waiver form used in this Court with the language relating to any consent to a waiver of CPL 570.44 omitted, as this Court has concluded that such language is impermissible under the statute. Under the circumstances present herein, where the courts are for the most part closed due to the COVID-19 virus, after a full explanation of the waiver process including Defendant's rights and options available to him, Defendant's signature should be secured on the waiver form or counsel should obtain authority to sign the waiver form on Defendant's behalf and the Court notified that the aforementioned has been completed. The parties will then be informed of the steps necessary for finalizing the waiver.

HON. SCOTT A. DUNN, J.C.C.

Dated: May 27, 2020

Kew Gardens, New York Footnotes

Footnote 1: In People v Frank, this Court dealt with the issue of whether the Defendant had lawfully consented to his detention pending completion of any outstanding criminal matters in New York State and waived the requirement that the Governor authorize that detention under CPL 570.44 by signing a standard waiver form used by the People to waive extradition in matters such as these (Frank at 5-7). This Court concluded that the Defendant's execution of a waiver of extradition pursuant to CPL 570.50 did not effect a waiver of CPL 570.44 or the Defendant's consent to detention pending the outcome of all outstanding criminal matters in New York State (id. at 8). This Court, without formally deciding the issue, also declared that it was its sense that under the statutory scheme set forth in Article 570, a defendant could not consent to such detention, but rather, detention could only be authorized pursuant to CPL 570.44, by the Governor (id.). The People, in the instant matter, again seek to secure such consent, but rather than relying on the language in the current CPL 570.50 waiver form — already found by this Court not to provide the proper notice to a defendant (Frank at 6) — attempted to do so orally before the defendant signed the waiver form. The Defendant's confused response was predictable and the Court was forced to intercede in the proceedings.

Footnote 2: The statutory framework of Article 570 was provided by this Court in both Luciano and Frank. It is provided again in the instant matter for the convenience of the reader.

Footnote 3: Instead of seeking this waiver, the People could have just served on Defendant a written authorization from the Governor to hold the Defendant pursuant to CPL 570.44. Indeed, as set forth in Frank, and reaffirmed here, a Defendant could be held under this statute pending the outcome of pending criminal proceedings in New York State, so long as the Governor exercises his authority, in writing, to that effect (Frank at 8).

Footnote 4: Consistent with this Decision as well as the People's acknowledgement that their consent is not needed for a waiver of extradition, even if the People could request that a defendant consent to detention as part of the 570.50 waiver process, which it cannot, a defendant could refuse that request and the 570.50 waiver still be granted by the Court.

Footnote 5: In regard to the People's reference to Harris, in Frank, this Court noted that Harris was readily distinguishable as it involved a blanket policy relating to the detention of fugitives with pending cases rather than an individual exercise of discretion (Frank at 3 n 2). Further, Harris involved the unusual circumstance of a judge calling the Extradition Office, a fact not present here. Accordingly, Harris appears to be a matter unique to its set of facts and to be limited to those facts. Finally, Harris is also distinguishable as the process here wholly fails to comply with even the basic rudiments of due process.

Footnote 6: Pursuant to CPL 570.36, a defendant initially appearing before a criminal court can be held for thirty days for procurement of the Governor's Warrant.

Footnote 7: Pursuant to CPL 570.40, an extension of the thirty-day time period provided in CPL 570.36 can be provided for issuance of the Governor's Warrant.

Footnote 8: A defendant could challenge a CPL 570.44 hold before the judge of the Criminal Court or via a petition for a writ of habeas corpus (see CPL 570.24, 570.32, 570.34, and 570.50). Any bail requests are to be made before a Supreme Court or County Court judge (CPL 570.38, 570.40 and petition for a writ of habeas corpus). As set forth in Frank, a basis may exist, constitutional or otherwise, for challenging a detention under CPL 570.44 (Frank at 8).