OPINION OF THE COURT I. Introduction This Court is once again called upon to consider the application of Article 570 of the Criminal Procedure Law, a maze of complex and often non-interlocking statutes, to an individual detained for the purpose of extradition (see People v. Luciano, NY Slip Op. 20025 [Crim Ct, Queens County 2020]). The issue presented herein, is whether that individual, Caisy Frank, can be detained pending completion of an open, local criminal matter before his extradition is effected. The People base their ability to detain the Defendant on a waiver of extradition signed by him at the arraignment. However, as set forth below, the Defendant’s waiver of extradition cannot serve as the basis for his continued detention pending completion of his open criminal matter. II. Procedural History On December 17, 2019, the Defendant was arrested in Queens County and charged with grand larceny in the third degree (Penal Law §155.35 [1]) and other related charges (“the Criminal Complaint”). At the time of his arrest, a complaint was also issued pursuant to CPL 570.32 and Defendant’s arrest authorized pursuant to CPL 570.34. That complaint (“the Fugitive Complaint”) was based on a warrant that had been issued on May 24, 2013 by Judge Anthony Truglia Jr. in the State of Connecticut, charging Defendant with the crimes of burglary in the third degree, grand larceny in the sixth degree and criminal mischief in the third degree. On December 18, 2019, the Defendant was arraigned on both the Criminal Complaint and the Fugitive Complaint. As for the Criminal Complaint, bail was set and the matter adjourned to December 20, 2019 (Criminal Court of the City of New York Record of Court Action). As for the Fugitive Complaint, at the arraignment, the Defendant, pursuant to CPL 570.50, waived his right to the issuance of a Governor’s Warrant of Extradition and to file a petition for a writ of habeas corpus, as provided for in CPL 570.24. The Defendant was remanded for extradition and the matter adjourned to December 20, 2019 (Criminal Court of the City of New York Record of Court Action). Thereafter, on December 20, 2019, the Defendant was indicted on the underlying criminal case. On January 6, 2020, the Defendant was ordered released on his own recognizance on the indicted matter, as the charges against Defendant no longer qualified for monetary bail pursuant to criminal procedure law amendments in effect as of January 1, 2020 (see CPL 510.10 [3], [4]). On January 9, 2020, Defendant filed a petition for a writ of habeas corpus with the Queens County Supreme Court pursuant to CPL 570.38. In his Petition, the Defendant sought an order for bail review relating to the Fugitive Complaint. Specifically, the Defendant requested that bail be set in the amount of $5,000.00 (Habeas Petition, Defendant’s Affirmation at 9). The petition was heard on January 14, 2020 and denied by the Supreme Court. In denying the application, the Court declined to release the Defendant on bail or change the Defendant’s remand status (January 14, 2020 Transcript of Proceedings at 6). That matter is currently pending in part Tap-A, and is next on April 15, 2020. As for the Fugitive Complaint, following the initial appearance, that matter has been adjourned four times since December 18, 2020. All of these adjournments were provided for the purpose of tracking Defendant’s pending criminal matter (Criminal Court of the City of New York Record of Court Action). On February 13, 2020, following the fourth adjournment, Defendant requested an opportunity to file a motion relating to his detention before this Court. Defendant was provided until February 24, 2020 to file his motion. The People were provided until March 2, 2020 to provide a response. The case was then adjourned until April 2, 2020 for a decision on the Defendant’s motion. Off calendar, and prior to April 2, 2020, the matter was administratively adjourned until May 4, 20201. All of the papers were timely filed (Criminal Court of the City of New York Record of Court Action). III. The Parties’ Arguments In support of his motion, Defendant argues that pursuant to CPL 570.40, he can only be held for a period of thirty days, with a possible extension not to exceed sixty days, once he has waived extradition (Notice of Motion, Defendant’s Affirmation at 4-5). He argues that the “clock on this statutory provision began running on January 6, 2020 when he was released on the indictment”, and that thirty-days have now elapsed without an extension being granted (id.). The People argue that this Court lacks jurisdiction over the Defendant’s instant motion as the issue presented by the motion can only be adjudicated by a superior court and that it already had been, when Defendant’s bail application made pursuant to CPL 570.38 was denied (People’s Affirmation at 4-5). In the alternative, the People argue that Defendant’s detention is authorized because “the Defendant waived issuance of a Governor’s Warrant of Extradition.” (id. at 7). IV. Statutory Framework 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 1-2; 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…” (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 [1987]). 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 650, 651 [County Ct, Sullivan County 2010] [same]). 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]; People v. Harris, 30 Misc 3d 483, 484 [County Ct, New York County 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.”2]). In this regard, the Governor’s unique power regarding the timing of the extradition is extremely broad (see People ex rel. Focarile ex rel. McNeil v. Goord, 12 Misc 3d 981 [Sup Ct, Westchester County 2006], citing State v. Robbins, 124 NJ 282 [1991] [In preservation of the asylum state's sovereignty, the Governor's ultimate duty to extradite a defendant "does not mature until punishment in the asylum state has been completed"]; see Taylor v. Taintor, 83 US 366, 371 [1873] [Rendition remains discretionary if fugitive incarcerated for violation of state law]; see In re Liberatore, 574 F2d 78, 89 [2d Cir 1978] ["…the sovereignty which first arrests the individual acquires the right to prior and exclusive jurisdiction over him, and this plenary jurisdiction is not exhausted until there has been complete compliance with the terms of, and service of any sentence imposed by, the judgment of conviction entered against the individual by the courts of that first sovereignty."]; 31A Am Jur 2d, Extradition §90 ["Where the fugitive demanded is incarcerated in the asylum state for a violation of that state's laws, the governor's duty to extradite does not mature until the punishment in the asylum state has been completed."3]). V. Discussion A. Jurisdiction The People argue that this Court lacks jurisdiction over this matter as applications pursuant to CPL 570.38, entitled “[b]ail; in what cases; conditions of bond”, may only be adjudicated by a supreme court justice or county court judge, and furthermore, Defendant’s application for bail has already been adjudicated and denied (People’s Affirmation at 3-4). Indeed, CPL 570.38 bail applications may only be brought before a justice of the supreme court or a judge of the county court. Accordingly, if the Defendant was in fact renewing his application for bail under that statute, this Court would lack authority to consider it. But he is not. Rather, this action is brought by the Defendant to compel compliance with CPL 570.40, and that statute specifically provides that a “local criminal court” may take action under the statute (see CPL 570.40). Further, this Court has jurisdiction under CPL 570.24, 570.32, and 570.34 which vest a criminal court with jurisdiction over the complaint filed in this matter. Moreover, this Court has jurisdiction pursuant to CPL 570.50, which provides this Court with the authority to consider the waiver of extradition. In this matter, as acknowledged by the People, the waiver is central to their argument regarding Defendant’s detention (People’s Affirmation at 7). Consistent with this, the People concede that this Court “retains jurisdiction to evaluate…the validity of the waiver itself.” (People’s Affirmation at 4). B. Application of CPL 570.40 As a threshold matter, Defendant’s assertion that he should be released under CPL 570.40 is misplaced. Indeed, CPL 570.40, by its terms, is only applicable if the People are seeking a Governor’s Warrant. However, here, the People are not seeking a Governor’s Warrant. Indeed, pursuant to CPL 570.50, Defendant has waived the CPL 570.24 provision requiring requisition of a Governor’s Warrant (December 18, 2019 Transcript of Proceedings at 3, lines 17-21; Notice of Motion, Defendant’s Affirmation at 4). Accordingly, the time strictures provided in CPL 570.40 are inapplicable to this matter. C. Application of CPL 570.44 But that does not end the inquiry as to the legality of the Defendant’s detention, as there still needs to be a legal basis for that detention. CPL 570.44 could be that basis as the Defendant does have a concomitant prosecution pending in New York State and the People are not effectuating his extradition because of that pending matter. Consistent with CPL 570.06 and the entirety of the statutory framework, CPL 570.44 is likewise structured on the central and critical role of the Governor and is predicated on an action taken by him or her. Indeed, the statute specifically provides that a defendant can only be held pending prosecution if the Governor exercises his or her discretion to do so (CPL 570.44 [emphasis added]). Given potential issues of interstate comity and due process concerns relating to liberty inherent in the decision to hold a fugitive from another state, it is important that such a decision be made at the executive level. Indeed, in the same vein, this is why it is only the Governor who can issue a Governor’s Warrant (see Governor’s Warrant). Here, there is no evidence of record that the Governor has exercised discretion under CPL 570.44. Indeed, the People do not assert that he has or that the Defendant is even being held pursuant CPL 570.44. Rather, they claim that he is being held based on his waiver of extradition under CPL 570.50 (People’s Affirmation at 7). D. Application of CPL 570.50 Indeed, the People argue that “we do not even need to discuss Criminal Procedure Law 570.44 because the Defendant waived the issuance of a Governor’s Warrant” (People’s Affirmation at 7). In this regard, the People assert that “the only applicable document that the Court is bound to enforce is the waiver of extradition.” (id.). In pertinent part, that form entitled “Waiver of Governor’s Warrant of Extradition and Writ of Habeas Corpus (“Waiver Form”) provides as follows: “By signing this waiver, I hereby consent to my return to the above-mentioned State. I understand that by signing this waiver, I am in the same position as if a Governor’s Warrant had been issued against me. I understand that I will not be returned to the said State until such time as I have disposed of any open criminal matters within New York State.” At bottom, the People are arguing that the Defendant’s waiver of extradition constitutes his consent to continued detention until his criminal matter in Queens County is completed and that he has effectively waived the requirement set forth in 570.44, that it is the Governor who determines when a rendition order is complied with. The People, however, conflate their ability to extradite the Defendant because of his waiver of extradition with their ability to hold him pending the outcome of his local criminal matter. 1. Waiver of Governor’s Authority under 570.44 At the outset, it is not at all clear that the Governor’s exercise of his discretion to hold a defendant pending completion of criminal proceedings is even waivable under the statutory framework set forth in CPL 570.50. Indeed, while CPL 570.50 specifically provides for a waiver of the rights enumerated under CPL 570.24 regarding a Governor’s Warrant and a writ of habeas corpus, no such explicit provision is provided for a waiver of 570.44. And that such authority be exercised at the executive level, rather than at the local level, is particularly appropriate here, given the significance of the issues at stake — interstate comity and liberty. Indeed, the People appear to acknowledge this when they assert that even in Defendant’s case, where a waiver has been issued, 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.” (People’s Affirmation at 7). Moreover and consistent with this, no authority, statutory or otherwise, is cited by the People for the language referenced by them in the waiver form, relating to pending criminal matters within New York State4. Indeed, 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”. 2. The Waiver Form does not provide consent to detention pending completion of criminal proceedings. Even if the statutory framework permitted an individual to consent to his detention and to waive action by the Governor pursuant to CPL 570.44, which appears far from permissible, this Court finds under the facts presented here, that the Defendant has not consented to his detention pending completion of his criminal proceedings and has not waived the provisions of CPL 570.44. It is elemental, that for a waiver to be effective and enforceable, it 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]; 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. Harris, 61 NY2d 9, 17 [1983], citing Johnson v. Zerbst, 304 US 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.'"; Luciano at 4; 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]). Accordingly, and consistent with the above, what specifically an individual is waiving must be clearly spelled out (see People v. Batista, 180 AD3d 698 [2d Dept 2020] [Waiver of right to appeal was invalidated where the record failed to establish that the defendant fully comprehended the consequences of his waiver]; see also People v. Hurd, 44 AD3d 791, 792 [2d Dept 2007], lv denied 9 NY3d 1006 [2007], citing People v. Pollenz, 67 NY2d 264, 268-270 [1986] [Form used by the Brooklyn Supreme Court waiving the defendant's right to appeal, which was executed in conjunction with defendant's guilty plea, misstated the applicable law and was found to be "misleading". The waiver was consequently invalidated and further use of the form discouraged by the Court]). And whatever standard is to be applied in determining a waiver which involves the issue of an individual’s right to liberty, particularly where, as here, detention is indeterminate and may be protracted, clarity is of particular importance and such a waiver must be subject to the strictest scrutiny (see Zadvydas v. Davis, 533 US 678 [2001] ["A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment's Due Process Clause forbids the Government to 'depriv[e]‘ any ‘person…of…liberty…without due process of law.’ Freedom from imprisonment — from government custody, detention, or other forms of physical restraint — lies at the heart of the liberty that Clause protects”]; see also Brady v. US, 397 US 742, 748 [1970] ["Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences."]). Notably, here, the relevant language in the waiver form contains no reference whatsoever to the Defendant being held or detained pending disposition of his criminal matter. This stands in marked contrast to the language in the waiver form which makes specific and explicit reference to a waiver of both the issuance of a Governor’s Warrant and the filing of a writ of habeas corpus, terms which are specifically provided for by statute (CPL 570.18; 570.24) and furthermore for which a waiver is statutorily permissible (CPL 570.50)5. Conspicuously, there is no such language relating to a waiver of CPL 570.44. Indeed, an analysis of each of the provisions of the waiver form highlights that no reference is being made whatsoever to Defendant’s detention. In fact, the language in the waiver form provides only that the signatory “understands” that he “will not be returned to the said State until such time as I have disposed of any open criminal matters within New York State”. However, no reference is made to the fact that Defendant will remain incarcerated during this time. Further, the term “understand” is hardly language which manifests confidence that the Defendant comprehended the true consequence of the waiver. Moreover, the waiver form provides that the Defendant consents “to [his] return to the above-referenced State”. Again, there is no language in this provision consenting to detention. Rather, this provision appears to directly relate only to the waiver of the Governor’s Warrant and the opportunity to file a writ of habeas corpus. Though the waiver states that by signing the waiver the signatory is in the same position as if a Governor’s Warrant had been issued against him, this provides no supplementary advisements as a Governor’s Warrant similarly makes no mention of a defendant’s continued detention generally or, more specifically, continued detention pending the completion of any criminal proceedings. Rather than manifesting consent to continued detention, this provision highlights the opposite. Indeed, as set forth in CPL 570.50, a waiver of the requisition of the Governor’s Warrant requires that a defendant be removed “forthwith”, not held6. Consistent with the above, this Court finds that the Defendant has neither consented to his detention pending completion of his open criminal matter nor waived the provisions of CPL 570.44. Accordingly, the Defendant is to be removed forthwith consistent with the provisions of CPL 570.50. 3. Detention Pursuant to CPL 570.50 As the Defendant is not being held pursuant to CPL 570.44 and has not knowingly consented to his detention pending completion of criminal proceedings, he is being held solely on his waiver pursuant to CPL 570.50, and that waiver, statutorily, relates to him being held for the purpose of extradition, rather than for completion of any criminal proceedings. To that end, the statute requires that a defendant be removed “forthwith” from this State. Implicit in that, however, is that the People be provided with a reasonable time to effect the extradition (see CPL 570. 36; Peter Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, CPL 570.36, citing 18 USC 3182 [The court is authorized to hold the defendant in custody for an initial period of thirty days, which may be extended for an additional sixty days in anticipation of requisition of the Governor's Warrant. Similarly, the court is authorized to detain a defendant for up to thirty days following the requisition of a Governor's Warrant in anticipation of retrieval by agents of the demanding state])7. Consistent with other time frames for action provided for by Article 570 (see CPL 570.36; 570.40), and with the above, the People are provided with thirty-days to effectuate Defendant’s extradition8 (see Zadyvdas at 699-701 [Establishing reasonable period for removal of a foreign national from the United States based on, inter alia, statutory framework]). VI. Conclusion A. Application of 570.44 Based on the statutory framework and case law, it is this Court’s sense that a defendant could be held pursuant to 570.44, pending completion of criminal proceedings in New York State, even if he has waived extradition, so long as the Governor, in writing, exercises his discretion to hold the defendant. However, the applicability of 570.44 to a situation where a defendant waives extradition is not resolved by this decision, in that it is not ripe for review, as the People assert that 570.44 is not applicable to this matter but rather that the Defendant is being detained by his waiver of extradition. Consistent with that, the issue of the length of time that an individual could be detained under 570.44, if that statute were employed, is likewise not resolved by this decision, although the facts presented herein, wherein the Defendant cannot be detained on his New York State criminal matter and is eligible for bail on his Connecticut matter (see CT ST §54-64a; 54-63b), certainly would raise constitutional and statutory concerns (see also 570.50 ["nothing…shall limit the right of the accused person to return voluntarily and without formality to the demanding state…"]). B. Waiver of 570.44 Based on the statutory framework and the case law, it is this Court’s sense that a defendant could not waive the Governor’s authority, vested in CPL 570.44, to hold him pending disposition of an open criminal matter in this State. Rather, for CPL 570.44 to apply, and to hold a defendant pending completion of an open criminal matter, the Governor must exercise his or her discretion in writing. However, this issue need not be resolved by this Court either at this time, because, as set forth below, the matter can be resolved based on review of the waiver form itself. C. The Waiver Form The People assert that the Defendant is being held pursuant to his waiver of extradition for the purpose of his open criminal matter. However, as set forth in this decision, an analysis of the waiver form reveals that the Defendant has neither waived the requirements of CPL 570.44 nor consented to his detention pending completion of criminal proceedings in New York State. Accordingly, the People are ORDERED, within thirty-days of the date of this decision, and consistent with CPL 570.50, to DELIVER9 the Defendant to the duly accredited agent or agents of the State of Connecticut or to RELEASE the Defendant so that he can voluntarily and without formality return to the State of Connecticut10. Dated: March 30, 2020
