Opinion
No. 57 SSM 57.
Decided January 12, 2010.
APPEAL, by permission of the Appellate Division of the Supreme Court in the Second Judicial Department, from an order of that Court, entered December 2, 2008. The Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, Suffolk County (Arthur G. Pitts, J.; op 13 Misc 3d 247), which had sustained a writ of habeas corpus, vacated a Governor's warrant for extradition, and dismissed the fugitive complaint, (2) dismissed the writ, (3) reinstated the warrant for extradition, (4) reinstated the fugitive complaint, and (5) remitted the matter to the Supreme Court. The following question was certified by the Appellate Division: "Was the decision and order of this court dated December 2, 2008, properly made?"
People ex rel. Blake v Pataki, 57 AD3d 583, affirmed.
Harry H. Kuttner, Jr., Mineola, for appellant.
Thomas J. Spota, District Attorney, Riverhead ( Michael Blakey of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, without costs. The certified question should not be answered upon the ground that it is unnecessary.
Once a governor of an asylum state has granted extradition, a court considering release on habeas corpus must decide "(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" ( Michigan v Doran, 439 US 282, 289). A fugitive is one who, "having committed a crime in a demanding State, is present in an asylum State when a demanding State seeks to prosecute the offense" ( People ex rel. Strachan v Colon, 11 NY2d 499, 502-503). Relator is a fugitive because he was convicted of a crime in South Carolina and escaped from incarceration. If, in 1993 or thereafter, South Carolina determined that it no longer sought to classify relator as a fugitive, it could have granted relator a pardon. Hence, relator's equitable arguments are more appropriately posited to South Carolina.
In memorandum.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.