DECISION AND ORDER On March 31, 2023, Defendant, ALEXIS BRIGGS, was charged in a complaint under Docket No. CR-009060-23QN with Assault in the Third Degree, in violation of Penal Law §120.00 (1), and Harassment in the Second Degree, in violation of Penal Law §240.26 (1). Additionally, on March 31, 2023, in a separate complaint under Docket No. FG-300156-23QN, the People sought Defendant’s extradition to Virginia, pursuant to Article 570 of the Criminal Procedure Law, based on a capias warrant issued out of the Loudoun County Circuit Court in Virginia. The Virginia warrant, issued on February 4, 2020, charged that Defendant had violated her probation, relating to her June 28, 2019, Virginia conviction for identity theft and credit card larceny. On March 31, 2023, an arraignment was conducted in Criminal Court in Queens County, New York. At that arraignment, Defendant elected not to waive extradition to Virginia. The case was adjourned to April 17, 2023. Defendant was remanded on the extradition matter, and bail was set at one dollar on the criminal complaint. The People argue that the Defendant has in fact waived extradition. In support of their argument, they reference a document entitled Offender’s Application for Interstate Compact Transfer. This transfer application, which Defendant signed on August 22, 2019, enabled the Defendant to have her probation supervision transferred from Virginia to New York. Specifically, paragraph 4 of said document provides that: “I agree to return to Virginia (sending state) at any time I am directed by the sending or receiving state. I know that I may have a constitutional right to insist that the sending state extradite me from the receiving state or any other state where I may be found. This is commonly called the right to extradition. But I also understand and acknowledge that I have agreed to return to the sending state when ordered to do so either by the sending or receiving state. Therefore, I agree that I will not resist or fight any effort by any state to return me to the sending state and I AGREE TO WAIVE ANY RIGHT I MAY HAVE TO EXTRADITION. I WAIVE THIS RIGHT FREELY, VOLUNTARILY AND INTELLIGENTLY.” (Emphasis in the original). The People argue that this document forms the basis for a waiver of extradition. In addition to the above-referenced document, the Court notes that the Defendant also signed a document entitled: Conditions of Probation Supervision. Specifically, paragraph 11 of that document provides in pertinent part that: “I freely, voluntarily and intelligently waive any right that I may have to extradition if arrested outside of Virginia.” On the other hand, the Defendant challenges her extradition. She asserts, referencing her New York State generated RAP sheet, that she was discharged from probation on June 16, 2021, and, therefore, could not be found to have legally violated probation at this time. She also asserts that her waiver of extradition was coerced and, therefore, was not given knowingly, intelligently or voluntarily. As a threshold matter, because Defendant’s probation was transferred to New York, her case is covered by the Interstate Compact for Adult Supervision (Compact). The Compact was enacted into law in New York State under Executive Law §§259m and 259mm. It may very well be, as the People suggested, that no judicial intervention pursuant to Article 570 of the Criminal Procedure Law is necessary to effect Defendant’s removal, and that Defendant can be removed merely by an individual from the State of Virginia establishing authority to take her into custody and the identification of Defendant as the person referenced in the warrant (see Rankin v. Ruthazer, 304 NY 302, 306-9 [1952] [interpreting predecessor statute to Executive Law 259m and mm which contained identical language relating to enforcement]). In the alternative, it may be that a criminal court in New York could enforce the Compact independent of CPL 570 proceedings (see People v. Bynul, 138 Misc 2d 326, 329-30 [Crim Ct, NY County 1987]). Finally, it could be, as apparently held by Judge Demakos in People v. Gordon, 176 Misc 2d 46 (Sup Ct, Queens County 1998), that proceedings under Article 570 of the Criminal Procedure Law are the exclusive vehicle for the return of an individual to a sending state. However, this issue need not be resolved here, as the People have indeed sought Defendant’s extradition pursuant to Article 570 of the Criminal Procedure Law. Here, the Government seeks Defendant’s extradition under CPL 570.16, as Defendant allegedly committed the acts resulting in the issuance of the warrant in this state, when she allegedly violated her probation. Pursuant to CPL 570.50, a defendant can waive extradition proceedings, and the statute sets up a mechanism for procuring that waiver. However, the statute makes clear that “the process for executing a waiver is not limited to a singular mechanism or procedure.” (CPL 570.50). Thus, a waiver of extradition “may be a component of the parole or probation process.” (People v. Harris, 2023 NY Slip Op 23110 *2 [Crim Ct, NY County 2023]; People v. Issacs, 139 Misc 2d 323, 324 [NY County Ct, Rockland County 1988]; People v. Lattimore, 138 Misc 2d 20, 22 [Crim Ct, NY County 1987]; People v. Corder, 132 Misc 2d 444, 445-46 [NY County Ct, Monroe County 1986]). Accordingly, the court finds that the waiver relating to the Compact, as well as the Conditions of Probation, can be used to waive extradition. Defendant argues, however, that she was coerced into signing the compact, and that, therefore, any waiver was not knowing, intelligent, and voluntary. Indeed, for a waiver to be effective in CPL 570 proceedings, it must be knowing, intelligent, and voluntary (see Harris, 2023 NY Slip Op 23110 *2-3; Issacs, 139 Misc. 2d at 325-26 [defendant claimed to be heavily sedated when she signed waiver]). Indeed, this court, over twenty years apart, has so held (People v. Luciano, 66 Misc 3d 884, 892-94 [Crim Ct, Queens County 2020] [cases cited therein]; Gordon, 176 Misc 2d at 55). When evaluating the use of a waiver as the one in this case, some courts have given effect to the waiver without a hearing (see Lattimore, 138 Misc 2d at 22; Corder, 132 Misc 2d at 446). Some courts have decided not to give effect to the waiver and also not to hold a hearing (Harris, 2023 NY Slip Op 23110 at * 3-4). While other courts have held that a hearing is appropriate to determine whether the waiver was knowing, intelligent and voluntary (Issacs, 139 Misc 2d at 326-27; Gordon, 176 Misc 2d at 54-55). But no court has dealt with the situation here, where a defendant has claimed that she was coerced into signing the waiver form. Accordingly, here, a hearing is the only appropriate alternative to resolve the issue of the use of the waiver (see Judiciary Law §2-b [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 (them)"]; People ex rel Calascione v. Ramsden, 20 AD2d 142, 148 [2d Dept 1963] [the court possess "inherent power to manage the conduct of proceedings before it"]). At the hearing, the parties may present any witnesses, in person or virtually, and submit any documents in support of their positions. Lastly, the Defendant argues that the basis for her removal, the violation of probation, is legally defective, as she has been discharged from probation. However, pursuant to CPL 570.46, an inquiry into the substance of the charge is not permitted by this court (California v. Superior Ct. of California, San Bernardino County, 482 US 400, 410-11 [1987] [cases cited]; People ex rel. Schank v. Gerace, 231 AD2d 380 [4th Dept 1997] [the court may not inquire into the legality of the offense charged by the demanding state which underlies the extradition request]; People ex rel. Kotch on Behalf of Russo v. Dist. Attorney, Kings County, 170 AD2d 632, 634 [2d Dept 1991] [same]). Accordingly, Defendant’s application to deny extradition based on the charge set forth in the fugitive complaint is DENIED. This constitutes the decision and order of this court. Dated: April 24, 2023
