On April 8, 2020, The Legal Aid Society filed this writ of habeas corpus on behalf of petitioner Shykeen Delaney, who at the time of its filing was being held at the New York City correctional facility at Rikers Island exclusively on a Virginia parole warrant detainer. The petitioner sought release from custody claiming that his right to due process was being violated by his continued detention. The respondent, the New York City Department of Correction (“DOC”), opposed granting the writ, asserting that the petitioner’s rights were not violated. Before the writ was submitted for decision, however, the petitioner was taken into custody by the Virginia authorities. Given that the petitioner was no longer in DOC’s custody, the respondent first asserted that the writ was moot. Counsel for the petitioner nevertheless asked this Court to reach the merits of the writ, claiming that it fell within the exception to the mootness doctrine, see Gonzalez v. Annucci, 32 NY3d 461, 470 (2018), which permits courts to “invoke[] the exception to mootness to consider substantial and novel issues that are likely to be repeated and will typically evade review.” In response, the respondent declined to ask that the petition be dismissed on mootness grounds and invited the Court to reach the merits of the writ. Both sides, after asking for additional time to do so, have now addressed the merits in memoranda and affidavits. Given the respondent’s position on the mootness question, and the fact that the exception appears to be applicable here, the Court will address the merits. THE HISTORY OF THE DEFENDANT’S DETENTION On March 6, 2020, the defendant was arraigned in Criminal Court, New York County, and charged with being a fugitive from Henrico County, Virginia, based on a warrant issued from that county. Although a second warrant had been issued and a second detainer from Chesterfield County, Virginia had also been lodged against the defendant, the defendant was not then arrested or arraigned on that second detainer. The defendant waived extradition on the Henrico County matter, and that matter was adjourned to March 23, 2020, for the Virginia authorities to pick him up. On March 19, 2020, an Assistant District Attorney in New York County advanced the case and moved to dismiss the Henrico County matter, having been notified that the Henrico County authorities no longer intended to extradite the petitioner on that warrant. The petitioner was not then released from custody, and instead continued to be held based on the Chesterfield County detainer. On April 2, 2020, 14 days later, New York County Assistant District Attorney Susan Roque sent an email to Robert Newman, the extradition specialist in the Criminal Practice Special Litigation Unit of the Legal Aid Society, stating, “I just spoke to Custody Management [of DOC] and was told that [the petitioner] is to be arrested on the Chesterfield County detainer today.” On April 8, 2020, with the defendant still in custody in New York, the Legal Aid Society filed this writ of habeas corpus. On April 21, 2020, DOC notified the Court and the petitioner’s attorney that the petitioner had been arrested that day on the Virginia warrant and taken away by the Virginia authorities. Thus, the petitioner was held in custody from March 19th until April 21st, a period of 33 days, based solely on the Chesterfield County detainer. THE APPLICABLE LAW CPL §570.34 provides that “any police officer or a private person” may arrest another person “without a warrant, upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year.” When so arrested, “the accused must be taken before a local criminal court with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest” as set forth in CPL §570.32. Id. If, after conducting an examination, the local criminal court finds the accused is the person charged with having committed the crime in the other state and that he has fled from justice, it must “commit him to the county jail for such a time not exceeding thirty days, as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense,” CPL §570.36, unless he is released on bail. CPL §570.38.1 If the thirty days elapse without the person’s arrest under the governor’s warrant, “the local criminal court 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. If an officer of the demanding state does not arrive to take custody of the person within thirty days of the receipt of the governor’s warrant, the person must be discharged from custody, 18 U.S.C. §3182; see Peter Preiser, “Practice Commentaries,” McKinney’s Cons Laws of NY, CPL 570.36; People v. Frank, 68 Misc 3d 337, 341 (Crim. Ct. Queens Co. 2020), unless the defendant is simultaneously being held on a New York charge or is serving a New York sentence. See CPL 570.62; In re Liberatore, 574 F.2d 78, 89 (2d Cir. 1978). DISCUSSION In People ex rel. Wells v. DeMarco, 168 AD3d 31, 40 (3d Dept. 2018), after the petitioner was sentenced to time served on his pending charges, he was kept in custody based upon a federal immigration detainer and warrant. The court held his continued detention “subjected [the petitioner] to a new arrest and seizure under both New York law and the Fourth Amendment of the United States Constitution.” Id.; see also Morales v. Chadbourne, 793 F3d 208, 217 (1st Cir 2015) (“Because Morales was kept in custody for a new purpose after she was entitled to release, she was subjected to a new seizure for Fourth Amendment purposes — one that must be supported by a new probable cause justification”). Similarly, holding the petitioner in this case beyond March 29, 2020, when the Henrico County matter was dismissed, constituted a new arrest for which a lawful justification was required. The Chesterfield warrant itself did not constitute such a justification, since “a detainer does not convey any authority or command to actually detain anyone. It merely requests continued detention of one already detained.” Wells, 168 AD3d at 42; see also Department of Correction’s General Office Manual, §5:11 (stating in bold that “these out of state warrants are not legal holds”). Instead, authority for the petitioner’s continued detention could come only from CPL §570.34, which required that, once arrested, he “be taken before a local criminal court with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest.” Thus, the issue here is whether the statutory requirement of producing the petitioner before the court “with all practicable speed” was violated. The Supreme Court has held in the context of an ordinary arrest that a probable cause hearing held “within 48 hours of arrest will, as a general matter, comply with the promptness requirement,” and that for a delay beyond 48 hours, “the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.” County of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991). Arguably, a period somewhat longer that of 48 hours might be considered “with all practicable speed” in the context of an out-of-state warrant, given the need of DOC to confirm that the person in custody is, in fact, the one who is the subject of the out-of-state warrant and that the demanding state is still seeking the person’s extradition. The specific situation at issue here — where the petitioner was held at first on two detainers, one of which became the subject of a court proceeding but was dismissed, leaving the petitioner held solely on the second detainer without being arraigned on it — is apparently unusual. Both sides, though, appropriately analogize this case to one in which a person is arrested on a New York case, an out-of-state detainer is filed against him, and the person afterward becomes eligible for release on the New York case.2 Captain Anthony Monastero, a supervisor in DOC’s Office of Custody Control and Management, avers in an affidavit submitted by the respondent that “the time between a defendant being eligible for release on [a] local criminal matter and the eventual arrest or re-arrest on the outstanding warrant or detainer, generally happens during a 48-hour to 72-hour timeframe.” He notes, however, that “this general timeframe can be prolonged due to various factors outside of DOC’s control.” Similarly, in another affidavit submitted by respondent, DOC Captain Robert Ellis avers that he “attempt[s] to carry out these procedural steps without undue delay, but in any event, with 72 hours as an outside time limit.”3 The respondent claims that DOC acted lawfully in this case because the delay beyond 72 hours was occasioned by a factor or factors “outside of DOC’s control,” but it fails to explicitly identify any particular such factor. While respondent invites the Court to take judicial notice of the fact that the COVID-19 health crisis has cause the criminal justice system to “collectively experience[] delays in its normal operations,” it offers no explanation as to how that crisis could have impacted arraigning the petitioner on the Chesterfield County detainer, particularly when he had been arraigned on the Henrico County one. Indeed, the respondent concedes that “Capt. Ellis did not particularly recall any individual circumstances concerning the processing and re-arrest of Mr. Delaney.” Pointing to cases in which persons were held solely on an out-of-state detainer after the local charges that prompted their original arrests were dismissed, the petitioner asserts that there is a factual dispute between the parties as to whether, whenever persons are held exclusively on an out-of-state detainer longer than 48 or 72 hours, the delay has been caused exclusively for reasons beyond DOC’s control. Accordingly, the petitioner asks the Court to convert this writ into an action for a declaratory judgment pursuant to CPLR §103(c) and that a schedule for discovery be set under CPLR Article 31. Respondent opposes this request, suggesting instead that the petitioner withdraw the writ and file an Article 78 petition. The issue here, however, is not whether DOC — rather than the New York County District Attorney’s Office, or someone or something else — was the cause of the failure to bring the petitioner to court after he was held solely on the Chesterfield detainer. Nor is the issue whether other persons in other cases were held unduly long after being held solely on an out-of-state detainer. What is at issue in this case is simply whether this petitioner was held too long on the Chesterfield detainer without being brought before a court, no matter who or what caused the delay.4 In making this determination, there is no need to decide whether a person held in custody solely on an out-of-state detainer must be produced before a court within 48 hours, or 72 hours, or even a somewhat longer period, in order to do so “with all practicable speed.” Whatever the appropriate period might be, this petitioner, who was held solely on the Chesterfield detainer for 33 days, was clearly held well beyond the requisite period.5 Nor does it matter whomever or whatever may have been the cause, since the respondent has not “demonstrated the existence of a bona fide emergency or other extraordinary circumstance,” McLaughlin, 500 U.S. at 57, that could possibly justify a lapse this long. Accordingly, I hold that the writ of habeas corpus filed by the defendant should have been granted, and the petitioner’s release from custody would have been ordered, had he not already been released from DOC’s custody. Dated: October 13, 2020
