Opinion
July 2, 1970
In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Richmond County, dated April 3, 1970, which dismissed the writ and directed that relator be delivered to the custody of representatives of the State of New Jersey. Judgment reversed, on the law, without costs, and proceeding remitted to the Supreme Court, Richmond County, for the purpose of holding a further hearing and making a determination de novo on the basis of the proof adduced upon such further hearing. The questions of fact have not been considered. In our opinion a further hearing is required to resolve the factual issue of whether relator was present in the demanding State when the crime charged was committed ( People ex rel. Hines v. Markley, 31 A.D.2d 538; People ex rel. Grant v. Doherty, 21 A.D.2d 829; People ex rel. Higley v. Millspaw, 281 N.Y. 441). At such hearing respondent may offer into evidence the demand for extradition by the Governor of New Jersey which is necessary in order to determine whether the arrest warrant by the Governor of New York was issued upon proper papers. The submission by respondent of said demand, together with the papers previously submitted, will suffice to make out a prima facie showing that relator was present in the demanding State when the crimes charged are alleged to have been committed. The burden will then shift to relator to establish by conclusive evidence that he was not in the demanding State when the crime was committed and that he is not a fugitive from justice ( People ex rel. Higley v. Millspaw, supra, p. 447). Our determination is, of course, limited to the extradition proceeding now before us and is not to be construed as affecting extradition proceedings brought under other sections of the Code of Criminal Procedure (cf. Code Crim. Pro., § 834). Munder, Acting P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.