Summary
In People ex rel. Witty v Warden of Rikers Is. Correctional Facility (248 AD2d 333 [1st Dept 19981) cited by respondent, the Court rejected petitioner's argument that Alabama's third extradition request should be barred because Alabama had not gotten its paperwork together in a timely fashion on the two previous extradition attempts which had to be discontinued.
Summary of this case from Peo. ex Rel. Blake v. PatakiOpinion
March 31, 1998
Appeal from the Supreme Court, Bronx County (Harold Silverman, J.).
Since petitioner did not raise this specific issue before the writ court, his contention that commencement of a third extradition effort was barred by CPLR 3217 (c), as twice previously discontinued, Has not been preserved for appellate review. Were we to review this claim, we would find it to be without merit. Reading the statutory scheme concerning extradition as a whole and in light of the unique characteristics of extradition ( see, CPL 570.48, 570. 64 Crim. Proc.), we do not find that the Legislature intended the CPLR limit on discontinuances to apply ( see also, People ex rel. Schank v. Gerace, 231 A.D.2d 380). In any event, were we to assume arguendo that CPLR 3217 (c) did apply, extradition of petitioner would not be barred by that statute. The second "discontinuance" of the extradition matter in 1995 did not operate as an adjudication on the merits, since the discontinuance was "clearly not for harassment purposes" ( Tortorello v. Carlin, 162 A.D.2d 291, 292). Notwithstanding that defendant was detained on two prior occasions and that no Governor's warrant was produced at either time, commencement of the third extradition proceeding pursuant to the issuance of the 1996 Governor's warrant was proper ( People ex rel. Brandolino v. Hastings, 72 A.D.2d 821). Petitioner's complaint about Alabama's long delay in making a timely delivery of extradition papers upon which the asylum State could take action should be addressed in the demanding State ( People ex rel. Strachan v. Colon, 77 N.Y.2d 499, 503).
Concur — Sullivan, J. P., Rosenberger, Nardelli, Rubin and Saxe, JJ.