I. Introduction This matter involves an action commenced pursuant to Article 570 of the Criminal Procedure Law of the State of New York seeking the extradition of Emanuel Luciano to the State of Florida. Pursuant to Article 570, an individual has the right to the issuance of a warrant of arrest by the Governor of the State of New York (“Governor’s Warrant”) and, following the issuance of such warrant, the opportunity to file a petition for a writ of habeas corpus contesting the legality of the extradition (CPL 570.18; 570.20; 570.24). However, the statute also provides that an individual may waive those rights, and voluntarily agree to return to the state seeking extradition (CPL 570.50). As this Court finds that the Defendant did not knowingly, intelligently, and voluntarily waive these rights, he is entitled to the issuance of a Governor’s Warrant and the opportunity to file a petition for a writ of habeas corpus once such warrant has been issued. II. Statutory Framework The Extradition Clause of the United States Constitution, Article IV, Section 2, Clause 2 provides that: “A person charged in any State with Treason, Felony or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” The Uniform Criminal Extradition Act (“UCEA”) was enacted “to implement the constitutional requirements of the Extradition Clause and to set forth extradition procedures” (People v. Fanning, 27 Misc 3d 740, 746 [Crim Ct, Queens County 2010], citing 31A Am Jur 2d, Extradition §11; see 18 USC §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 Commentaries, McKinney’s Cons Laws of NY, CPL 570.02). In New York, the UCEA is codified in Article 570 (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). 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 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). A defendant may be detained pending the completion of the extradition process (CPL 570.28; 570.30; 570.36; 570.40). The provisions of CPL 570.24 must be strictly complied with as the consequence of non-compliance may result in the filing of felony charges (CPL 570.26). III. Statement of Facts A. The Arraignment On July 21, 2019, pursuant to Article 570.32, this action was commenced in the Criminal Court of the City of New York, County of Queens, on a fugitive from justice complaint seeking Defendant’s extradition to the State of Florida. The extradition request was based on an arrest warrant issued on May 1, 2019 by a clerk of the Circuit Court of the Ninth Judicial Circuit in the State of Florida, Orange County, charging the Defendant with the crime of battery on a law enforcement officer (Accusatory Instrument at 1). At the arraignment of the Defendant the following colloquy took place: “THE COURT: Okay. Let’s arraign Mr. Luciano on his fugitive matter as well. “COURT OFFICER: Mr. Luciano, you stand before this Court on a fugitive warrant from the state of Florida. In that state, you are charged with the crime of battery on a law enforcement officer. You have a right to counsel assigned by the Court. Is this your attorney standing next to you, yes or no? “DEFENDANT LUCIANO: I don’t understand. “COURT OFFICER: Do you need an interpreter? What language? “DEFENDANT LUCIANO: Spanish. “MS. MERENSTEIN [attorney for the Defendant]: Judge, for the record, I interviewed him in English. “THE COURT: You did the interview in English? “MS. MERENSTEIN: I did, Judge. It is important, so I have no problem with the Spanish interpreter at this point. “COURT OFFICER: We’re going to do the extradition warrant. Mr. Luciano, you stand before this Court on a fugitive warrant from the State of Florida. In that state, you are charged with the crime of battery on a law enforcement officer. You have the right to counsel assigned by the Court. Is this your attorney standing next to you, yes or no? “DEFENDANT LUCIANO: I just met her. I don’t know if that’s my lawyer. “MS. MERENSTEIN: Listen, answer the questions. I’m your lawyer for today. “COURT OFFICER: Is this your attorney standing next to you, yes or no? “DEFENDANT LUCIANO: Yes. “COURT OFFICER: You have the right to the issuance and service of a governor’s warrant for your arrest and return to the demanding state. You or your counsel may petition for a writ of habeas corpus for the purpose of contesting the legality of your arrest and detention in this state. You may waive these rights and agree to voluntarily return to the State of Florida. Have you had sufficient time to speak with your attorney, and do you understand these rights, yes or no? “DEFENDANT LUCIANO: No. “MS. MERENSTEIN: She’s asking if you understand there’s an extradition from Florida. So, what you wanted to do is go back to Florida as soon as possible so that you can contest these charges in Florida. They’re going to hold you no matter what. So, if you don’t go back, you’re just going to wait here until they get a governor’s warrant back from Florida. The idea is to go back as soon as possible. “DEFENDANT LUCIANO: (In English) I’ve been in Florida for probation. “MS. MERENSTEIN: I thought you needed a Spanish interpreter. Use the interpreter because you requested the interpreter. There’s an allegation based on probably the probation there or a case there, so you can’t fight that from here. So, you need to go back. What we’re asking is that you go back as soon as possible. If you fight it, you’re going to wait here even longer, but eventually, they will get an order to bring you to Florida. So, basically, we’re asking the judge to get the authorities here as soon as possible. Listen to the questions and answer. “COURT OFFICER: Do you hereby waive your right to service of a governor’s warrant and writ of habeas corpus and agree to voluntarily return to the State of Florida to answer the above charges, yes or no? “DEFENDANT LUCIANO: Yes. “COURT OFFICER: Sign here on the X” (July 22, 2019 tr at 6, lines 10-25; at 7, lines 1-25; at 8, lines 1-25; at 9, lines 1-10). The case was then adjourned until August 12, 2019 and the Defendant remanded (July 22, 2019 tr at 12, lines 1-7). B. Subsequent Adjournment Thereafter, the matter was adjourned on seven separate occasions. On August 12, 2019, the case was adjourned to August 27, 2019 for the purpose of extradition (Criminal Court of the City of New York Record of Court Action). On August 27, 2019, the case was adjourned until September 13, 2019 to track the status and outcome of Defendant’s pending misdemeanor case1 (id.). Thereafter, the case was adjourned an additional five times, for such tracking (id.). After seven separate adjournments, the case was adjourned until December 6, 2019, for the extradition (id.). C. The December 6, 2019 Proceedings On December 6, 2019, the parties appeared before this Court for the Defendant’s extradition to the State of Florida. The Defendant, however, protested his removal. He asserted that he had never signed a waiver and that he did not understand the proceedings. Indeed, as stated by the Defendant: “THE DEFENDANT: Judge, when coming here not Linda, my lawyer right now, the first lawyer she give me — she give me paper for extradition. I said it is a problem because I never signed that paper, you know. I am Emanuel Luciano. I don’t know what they told me. I don’t understand. My name is Emanuel Luciano. I don’t understand what Florida call me in the case like it is no real” (December 6, 2019 tr at 3, lines 19-25; at 4, line 1). Thereafter, this Court inspected the signed waiver form which revealed that the signature line intended to be signed by the “Person Charged” did not bear the name of the Defendant, but rather the name “God Royl.” The Court questioned the Defendant on this issue, who continued to deny that he signed the waiver form: “THE COURT: Have you ever used the name God, God Royal or some name similar to that? Have you ever used that name? “THE DEFENDANT: Who? “THE COURT: Have you ever used the name God Royal? “THE DEFENDANT: I can’t — “THE COURT: You never used the name? I am going to show you a document entitled Waiver of Governor’s Warrant Extradition Writ of Habeas Corpus? Can you hand this document to Mr. Luciano? “THE COURT OFFICER: (Handing). “THE COURT: Do you recognize this document, sir? “THE DEFENDANT: It says, it is says God Royal. “THE COURT: My question to you, do you recognize this document? “THE DEFENDANT: I just don’t — “THE COURT: Just please answer my questions. There is a signature block on that. Thank you, Ms. Bucher for pointing it out. Is that your signature that appears on the document; yes or no, sir? Yes or no. “THE DEFENDANT: That’s not sign. “THE COURT: Is that your signature which appears on the document, yes or no? “THE DEFENDANT: No, Your Honor.” (December 6, 2019 tr at 8, lines 13-25; at 9, lines 1-11). Following this colloquy, the People requested a hearing on the issue of the waiver, and specifically requested that the arraignment judge be produced for that hearing. The latter request was denied by this Court2. The case was then adjourned until December 27, 2019, for consideration of the request for a hearing, as well as the issues presented herein, and for procurement of the July 22, 2019 transcript from the Defendant’s arraignment. D. The Parties’ Arguments Following procurement of the July 22, 2019 transcript, a copy of such transcript was provided electronically to the parties, and the parties given an opportunity to set forth their respective positions on the matter. The Defendant did not file a response. The People did, and in their response asserted that their position remained that the Defendant had executed a valid waiver of extradition. In the main, the People cited to People v. Fanning, and argued that “[a] defendant cannot withdraw his waiver absent a showing that it was not made knowingly, intelligently and voluntarily” (People’s response citing Fanning at 749). Finally, the People renewed their request for a hearing, stating that at such hearing they would present two witnesses, the arraigning judge and the Defendant’s counsel at arraignment. IV. Discussion A. The Waiver Pursuant to CPL 570.50 It is well settled law that to be enforceable, a waiver must be knowing, intelligent, and voluntary (see People v. Seaberg, 74 NY2d 1, 11 [1989], citing Johnson v. Zerbst, 304 US 458, 464 [1938] [Waiver of right to appeal incorporated in defendant's plea agreement was enforceable as the waiver was voluntary, knowing, and intelligent]; Miranda v. Arizona, 384 US 436, 444-445 [1966] [Waiver of the right to remain silent effective only where the waiver is shown to be made voluntarily, knowingly and intelligently]; People v. Tyrell, 22 NY3d 359, 365-366 [2013], citing Boykin v. Alabama, 395 US 238, 242 [1969] [After concluding that the record did not affirmatively demonstrate the defendant's understanding or waiver of his constitutional rights, the Court vacated defendant's guilty plea and dismissed the misdemeanor complaint asserting that, "'[p]resuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused intelligently and understandingly rejected his constitutional rights. Anything less is not a waiver.’”]; People v. Davis, 75 NY2d 517, 523 [1990], citing Edwards v. Arizona, 451 US 477, 486 [1981], Brewer v. Williams, 430 US 387, 404 [1977] [In determining whether the defendant waived her right to counsel when speaking with investigating authorities the Court held that, "[t]he People were charged with the burden of proving a knowing, intelligent and voluntary waiver. In deciding whether they met that burden, the courts must indulge every reasonable presumption against waiver.”]; People v. Arroyo, 98 NY2d 737, 738-739 [1986], cert denied 479 US 953 [1986] ["[B]efore proceeding pro se a defendant must make a knowing, voluntary and intelligent waiver of the right to counsel”]; People v. Harris, 61 NY2d 9, 17 [1983], citing Johnson v. Zerbst at 464 ["The key issue in these cases, then, is whether the defendants knowingly, voluntarily, and intelligently relinquished their rights upon their guilty pleas." The Court noted that a silent record "will not overcome the presumption against waiver by a defendant of constitutionally guaranteed protections. To be sure, the record must show 'an intentional relinquishment or abandonment of a known right or privilege.'"]). This standard has been specifically applied by this Court to matters brought under Article 570 (Fanning at 747-749 [Applying "voluntary, knowing and intelligent" standard to waivers executed pursuant to CPL 570.50]). In determining whether a waiver has met this standard, a court must make certain that the record is “sufficient to establish that defendant understands the ramifications of such waiver” (see People v. Smith, 6 NY3d 827, 828 [2006], cert denied 548 US 905 [2006]; People v. Pressley, 116 AD3d 794, 795 [2d Dept 2014], lv denied, 23 NY3d 967 [2014] [A court must ensure that the waiver is evident from the face of the record]). In this regard, even a written waiver, standing alone, does not provide sufficient assurance that the defendant is knowingly, intelligently, and voluntarily “giving up” his rights (see People v. Kaiser, 100 AD3d 927, 928 [2d Dept 2012], lv denied, 20 NY3d 1062 [2013], citing People v. Bradshaw, 76 AD3d 566 [2d Dept 2010], affd 18 NY3d 257 [2011]). Here, it is clear from the record that the Defendant did not knowingly, intelligently, and voluntarily waive his rights under CPL 570.50. Indeed, when asked if he understood his rights, the Defendant replied, unequivocally, “No” (July 22, 2019 tr at 8, line 5). The Defendant has never wavered from this position, asserting again at the December 6, 2019 proceeding that he “don’t know what they told me. I don’t understand” (December 6, 2019 tr at 3, lines 23-24). Evidence that the Defendant did not knowingly, intelligently and voluntarily waive his rights finds further support in other aspects of the proceedings. Indeed, at the arraignment, on the record, after the Defendant indicated that he did not understand the rights to be waived, his attorney did not respond with an explanation of the rights he was waiving, but rather with the practical assertion that if he did not waive them, he would remain in custody even longer (July 22, 2019 tr at 8, lines 6-25; at 9, lines 1-3). In response, the Defendant interrupted his attorney and stated, “I’ve been in Florida for probation”, indicating surprise that his probation status could result in the issuance of a fugitive warrant, and further manifesting his confusion with the process (tr at 8, lines 15-16). And while the Defendant appears to have signed a waiver form at the July 22, 2019 arraignment, such signature does not provide any assurance to the Court that the Defendant voluntarily, knowingly, and intelligently waived his rights under CPL 570.24 given the clear evidence to the contrary. Rather, it only further emphasizes the absence of a lawful waiver. Indeed, as a threshold matter, there is no reason to believe that the Defendant fully understood the contents of the waiver form as the waiver is written in English and the Defendant required the services of a Spanish Interpreter (July 22, 2019 tr at 6, lines 20-22) (People v. Perez, 160 AD3d 901 [2d Dept 2018], lv denied, 31 NY3d 1151 [2018] [Although defendant signed waiver of appeal, nothing in the record demonstrated that the document was translated to Spanish speaking defendant who required use of a translator]; People v. Guarchaj, 122 AD3d 878, 879 [2d Dept 2014] [Same]). Moreover, notably, the Defendant did not even sign the waiver in his own name, but in another, apparently fictitious name. This serves only as further illustration of Defendant’s resistance and confusion with the process3. Based on the above, the Defendant did not knowingly, intelligently or voluntarily waive his rights to the issuance of a Governor’s warrant. B. People’s Request for a Hearing The People seek a hearing concerning the issuance of a Governor’s Warrant and request to call two witnesses that were present at the Defendant’s arraignment: the arraigning judge and defense counsel. As a threshold matter, Article 570 does not provide any statutory authority for a hearing concerning the issuance of a Governor’s Warrant or the waiver of the right thereof (cf. CPL 710.60 [4]). This, without more, constitutes a basis for denying the People’s request for a hearing. In any event, it may be that the Court has the discretionary authority to hold such a hearing (see Judiciary Law §2-b (3) [affording the courts the ability to "devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it"]); People ex rel. Calascione v. Ramsden, 20 AD2d 142, 148 [2d Dept 1963], affd 13 NY2d 1113 [1964] [The court possesses "inherent power to manage the conduct of the proceedings before it"]). However, the Court declines to exercise its discretion to hold such a hearing. Indeed, a hearing is unnecessary as the record clearly evidences that the Defendant did not knowingly, intelligently and voluntarily waive his rights to a Governor’s Warrant. This conclusion is further reinforced by consideration of the witnesses the People seek to call. As here, where a party seeks to call a judge to testify as to a matter of record, the testimony of the court is superfluous (cf. People v. Rodriguez, 14 AD2d 917 [2d Dept 1961] [In a coram nobis application, co-defendants sought recusal of the presiding judge, who was also the trial judge, asserting that they intended to call the judge as a witness to testify regarding the substance of two bench conferences at the trial, which they allege resulted in the improper suppression of Magistrate's Court's minutes from the jury. In determining that there was no basis for calling the judge as a witness the Court noted that, contrary to defendants' contention, "the grievance complained of was a matter of record" and therefore the judge was an improper witness.]). Here, as the People are acutely aware given their conversation with the arraigning judge, that judge has no independent recollection of the matter4. Accordingly, the arraigning judge could not offer any testimony other than what is already contained within the Court’s record. Moreover, the record does not reflect that any bench conference or off-the-record conversation took place. As to defense counsel, similarly captured on the record was her effort to rehabilitate the Defendant by explaining perhaps the practical purpose of the waiver. However, her explanation did not amount to an explanation of the rights the Defendant was waiving (July 22, 2019 tr at 8, lines 6-25; at 9, lines 1-3). And irrespective of whatever counsel’s explanation of Defendant’s rights were off the record, it is clearly established on the record that the Defendant did not understand them (id. at 7, lines 19-25; at 8, lines 1-5). Finally, requiring testimony of such conversations would certainly encroach on the disclosure of privileged communications protected by the codified attorney-client privilege (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.6; Guide to NY Evid rule 5.03, Attorney [CPLR 4503]; People v. Cassas, 84 NY2d 718, 723-724 [1995]; Priest v. Hennessy, 51 NY2d 62, 67-68 [1980]; People v. Shapiro, 308 NY 453 [1955]; People v. Ali, 146 AD2d 636 [2d Dept 1989]). As such, no useful purpose would be served by examining defense counsel. Accordingly, for all of the above-stated reasons, the People’s request for a hearing is denied. CONCLUSION Based on the foregoing, this Court concludes that there has not been a knowing, intelligent, and voluntary waiver pursuant to CPL 570.50. Accordingly, should the People elect to proceed with this matter, the People are directed, consistent with sections 570.18 and 570.20 of the Criminal Procedure Law, to serve on the Defendant a Warrant of Extradition by the Governor of the State of New York. In the event that the Governor’s Warrant is not served on Defendant within 30 days (January 27, 2020), then the Defendant is ordered to be released pursuant to CPL 570.36. Dated: January 30, 2020 Kew Gardens, NY
