DECISION AND ORDER Defendant moves for an order of dismissal on speedy trial grounds arguing that the People should be charged with the time where they failed to produce the defendant after he was extradited to Texas on two fugitive warrants. The People oppose. For the reasons explained more fully herein, defendant’s motion is denied. Defendant was arraigned on a misdemeanor complaint on October 9, 2022, charging Driving While Under the Influence of Alcohol or Drugs under VTL §§1192(3) and 1192(1) and Unlicensed Operator under VTL §509. This commenced the running of a ninety-day statutory period, less excludable time, within which the People must be ready for trial pursuant to the requirements of C.P.L. ‘ 30.30(1)(b). Once a defendant alleges that the People have failed to announce their trial readiness within the statutory speedy trial time, the People must demonstrate that the disputed adjournments are excludable by reference to a statutory provision. People v. Luperon, 85 NY2d 71, 77-78 (1995); People v. Cortes, 80 NY2d 201 (1992); People v. Santos, 68 NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333 (1980). EXTRADITION At defendant’s arraignment it was discovered that he was the subject of two fugitive warrants from Texas. “A fugitive from justice is a person who has committed a crime while physically present within a state…and has fled from that state to another without waiting to abide the consequences…” (Peter Preiser, 2012 Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, Uniform Criminal Extradition Act, §570.06, at 219, citing to People v. Colon, 77 NY2d 499 [1991]). Once the return of a fugitive is demanded by another state, and there are no defects in the form of the demand, the Governor of New York has a mandatory duty to issue a warrant for that person’s arrest and to deliver them over to the custody of the demanding state (CPL §570.06). A defendant arrested pursuant to a Governor’s warrant has the right to counsel and has the right to challenge the validity of his arrest by seeking a writ of habeus corpus (CPL §570.24). A defendant may waive these rights after being advised of the same in a court of law (CPL §570.50). However, if a defendant does challenge extradition, there are only four issues the asylum state may consider before the fugitive is delivered up: “(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive.” Peter Preiser, 2012 Practice Commentaries, (McKinney’s Cons Laws of NY, Book 11A, Uniform Criminal Extradition Act, §570.02 Short Title, at 216), citing to California v. Superior Court of California, 482 US 400, at 407-408 (1987). If a fugitive from justice is contemporaneously facing criminal charges in New York, it is within the Governor’s discretion to detain that individual, pending the prosecution of those charges, before surrendering him to the demanding state (CPL §570.44). SPEEDY TRIAL At his arraignment on October 9, 2020, the defendant waived his right to the issuance of a Governor’s Warrant of Extradition as well as his right to challenge the legality of his extradition by filing a writ of habeus corpus pursuant to CPL §570.24. On December 9, 2022, there being no directive from the Governor to hold the defendant, he was released to the custody of the Harris County Sheriff’s Department. On December 16, 2023, the People filed their certificate of compliance (COC) and statement of readiness (SOR) on the underlying charges. On subsequent adjourn dates the People were ordered to produce the defendant. The People advised the court that they were unable to do so as the defendant was currently out of New York State’s jurisdiction, and they could not compel another state to produce him. On April 5, 2023, defense counsel filed the underlying motion arguing that the People should be charged with the time in which they have failed to produce the defendant. Additionally, defense counsel accuses the People of failing to attempt to retain the defendant pursuant to the Governor’s discretion. The People argue they should not be charged with these adjournments as they cannot file an order to produce or mandate any out of state court to comply with such request. Additionally, the People indicate that they did seek to retain the defendant but do not have control over whether the Governor chooses to exercise such discretion. Citing to People v. Santos, 135 Misc2d 51 (Sup Ct NY Co 1987), the People contend that once a defendant waives extradition, the Governor may no longer hold that individual on pending criminal charges prior to extradition. However, as recognized by the court in People v. Frank, 68 Misc3d 337 (Crim Ct Queens Co 2020), this holding creates an internal dissonance between differing sections of Article 570, by allowing a defendant to waive the Governor’s vested authority. This does not appear to be the legislative intent when all parts of the Uniform Criminal Extradition Act are read in their entirety. Additionally, the People submit that the defendant has been released and is no longer in the custody of Texas law enforcement, therefore it is not their responsibility to produce him on his open matters. Finally, the People indicate that they had sought the Governor’s intervention to hold the defendant to no avail, stating: “[d]espite the People’s request for a warrant to be ordered, no such warrant was ordered” (People’s memorandum of law, p.3). A Governor’s warrant was not required as the defendant had already waived extradition. However, some form of written directive from the Governor was required to hold the defendant. The People do not have any control over whether the Governor chooses to exercise such discretion. Pursuant to CPL §30.30(4) (c)(i), the following time is excluded from speedy trial calculations: the period of delay resulting from the absence or unavailability of the defendant. A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence; The defendant clearly became “unavailable” when he was extradited to Texas on the underlying fugitive warrants. Additionally, since the defendant was released from custody in Texas, and his present location is unknown, the defendant is currently “absent” within the meaning of CPL §30.30(4)(c)(i). Such time is excludable. Accordingly, as only sixty-eight days are chargeable against the People’s ninety-day speedy-trial time limitation, the defendant’s motion to dismiss is denied. The foregoing constitutes the Decision and Order of the court. Dated: June 15, 2023
