Opinion
Docket No. FG-300084-21BX
04-05-2022
The PEOPLE of the State of New York v. Ronnie DINGLE, Defendant/Detainee
Darcel D. Clark, District Attorney (Gary T. McKenna of counsel), for plaintiff. Bronx Defenders (Jamaal Jones of counsel) for defendant.
Darcel D. Clark, District Attorney (Gary T. McKenna of counsel), for plaintiff.
Bronx Defenders (Jamaal Jones of counsel) for defendant.
Steven L. Barrett, J. Defendant Ronnie Dingle is held in custody pursuant to having been remanded on an extradition hold, FG-300084-21BX, from requesting state Connecticut, and in lieu of bail of $75 K cash, $100 K insurance company bond, or $100 K partially secured bond (10%) on a pending New York State (Bronx County) criminal charge of criminal possession of a weapon second degree, Indictment 70680-21. On the FOA, defendant elected to waive extradition to the State of Connecticut on 10/14/ 21 rather than requesting a Governor's Warrant. Subsequently, the Court was informed by the District Attorney that New York would proceed on the Bronx County Indictment prosecution first before releasing defendant to Connecticut, so that defendant would remain in custody under the FOA regardless of his bail status on the open case. Indeed, defense counsel has recently stated that defendant would be able to make bail in the open New York case and has protested defendant's continuing remand status on the FOA insofar as it makes bail academic on the open matter and will result in his protracted and unwarranted imprisonment on the extradition hold even as that matter is held in abeyance. At least when the foreign matter does not entail an allegation of causing a death or other capital offense (see CPL 570.38 ), a determination that defendant can be held in New York on remand status indefinitely — regardless of the nature or merits of the foreign matter for which he is being extradited and despite his inability to address that matter currently (see CPL 570.46 ) — may well lead to an unjust imprisonment that was not contemplated by the controlling statutes.
Because the District Attorney has announced its intention to try the New York indictment before releasing defendant to Connecticut, invoking the District Attorney's putative power to choose whether to hold defendant for New York prosecution or to release defendant to Connecticut immediately, this election has direct and significant consequences affecting defendant's liberty. The power to make this election must be clearly authorized and exercised under constraint of specified procedures. As the liberty interests of this defendant and others similarly situated are implicated by this choice of whether to hold or send the individual, this Court will review the statutory provisions that are applicable and seek to clarify what procedures are intended and must be put into effect.
There is, of course, a simple solution to this situation, that may or may not be appropriate here, that would eliminate this tension between the legitimate goals of extradition and interstate comity and the principle that a continuing denial of liberty must be well justified. While it is the practice upon detention in connection with extradition for the People to request remand status, and for the courts to grant that request, remand is not mandated by statute and the New York courts are free to set bail or even to release an extradition detainee on his own recognizance. CPL 570.38. Often, however, an extradition request falls upon a defendant's arrest on separate New York charges, and the bail decision is made in view of both matters together. In any event, the fact that the courts can fashion a bail decision as to an extradition request is a trivial solution to the problem here identified insofar as it is generally observed only in the breach and does not address a liberty concern that frequently arises due to the general practice of ordering that an extradition detainee be remanded.
It bears noting at the outset that just as a defendant / detainee does not have any right to choose the order in which the New York indictment and the foreign extradition request will be resolved, the District Attorney has no such power to make that determination. This point is worthy of mention because it is widely assumed, as reflected in the practice and by the statements of the Assistant here, that the District Attorney does have that right. In fact, the controlling statute confers the right to choose exclusively on the New York State Governor. CPL 570.44 states: "If a criminal prosecution has been instituted against such person under the laws of this state and is still pending, the governor, in his discretion, may either surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this state." This clear assignment of discretion to the New York Governor is the legislative descendent of People ex rel. Gallagher v. Hagan , 34 Misc. 85, 69 N.Y.S. 475 (N.Y. Sup. Ct. 1901), which citing an even older precedent recognized that the governor's duty to surrender is neither absolute nor unqualified but instead depends on the circumstances of the case.
The District Attorney here is plainly aware of this authority and of this statutory provision but interprets this as satisfied by the statement in memorandum: "It is established policy of the New York Governor to allow criminal prosecutions to run their course before the Governor orders extradition." This position finds some support in People v. Harris , 30 Misc. 3d 483, 912 N.Y.S.2d 398 (Cattaraugus Co. Ct. 2010), but this decision summarily reaches the conclusion that "this policy seems to be both logical and efficient" while offering no analysis in support of that conclusion nor any scrutiny of the precise language of CPL 570.44 in which the Governor's authority is defined. Far more persuasive is the discussion in People v. Wimms , 68 Misc. 3d 645, 125 N.Y.S.3d 842 (N.Y. Crim. Ct. 2020), in which Judge Dunn, grounding his decision in due process as well as the express statutory language of CPL 570.44, held that informal communications or policies attributable to the Governor's staff handling extradition matters satisfies neither. Instead, to invoke this statutory provision, the court must be notified "in writing, with clear evidence that the Governor has authorized that the defendant be held pursuant to that statute." Id. at 660, 125 N.Y.S.3d 842. This Court agrees that the discretionary choice in which a substantial liberty interest may be affected, in which the authorizing statute explicitly names the Governor, and in which the Governor's role in extradition is historically and statutorily fundamental, must reflect a decision by the Governor in the individual case, as opposed to a policy or a staff opinion or an informal understanding.
The actual language of CPL 570.44 states that the Governor has a choice between two options. Obviously, when the Governor issues a decision expressing one of those choices, the direction is clear. But it appears in this case, and we suspect in most cases due to the informality of the practice in most cases, that the Governor has not expressed a choice and that there is no formal written election that would identify the Governor's direction. Of course, the People can submit such an order to the Court in response to this decision, but it remains to determine what action is to be taken if the Governor is silent. That is, what is the basis for choosing between two statutory options that appear to be written as equals. The answer must lie in other provisions of Article 570 which by inference will identify the proper default position. When a person is detained on an extradition complaint, there are two options: a detainee can elect to waive the requirement of a Governor's warrant of extradition (and the right to bring a habeas corpus petition), or he can demand that a Governor's warrant of extradition be obtained before he can be released to the foreign state. As the Court has reviewed the entirety of Article 570, it can find no distinctions as to the detainee's rights (other than those waived) or the collateral consequences attributable to the choice between waiver and Governor's warrant except for the timeline that is set out for surrender to the authorities of the foreign state. Pursuant to CPL 570.50 pertaining to the written waiver of extradition proceedings, once such a waiver has been properly executed, the waiver shall forthwith be forwarded to the secretary of state for filing, and the judge shall direct the detainee's custodian to "deliver forthwith such person to the duly accredited agent or agents of the demanding state." Judge Dunn, in People v. Frank , 68 Misc. 3d 337, 123 N.Y.S.3d 421 (N.Y. Crim. Ct. 2020), opined that implicit in the direction that the detainee be delivered "forthwith" was a recognition that the People be provided with a "reasonable time to effect the extradition", which the court there set to be thirty days. This court does not quarrel with that determination but observes that the definition of an exact period to effectuate extradition is not central to our point regarding the overall perspective of Article 570. Likewise, when a detainee chooses to demand a Governor's warrant of extradition, the time limits are distinct from those in a waiver context but the thrust of the guiding provisions is the same. Under CPL 570.36, the judge before whom the detainee appears must commit him to the county jail for a period not exceeding thirty days (but subject to setting bail under CPL 570.38 ) to accommodate the necessity of obtaining a Governor's warrant; and under CPL 570.40, the judge may extend the period of detention (or release subject to return) for a period not to exceed sixty additional days for the Governor's warrant. Though the time frames are different, both alternatives envision some defined time limit by which a detainee must be picked up by the foreign requesting state. In other words, the statutory design does not regard the indefinite and protracted imprisonment of the detainee pursuant to an extradition warrant, but to his delivery to the foreign state and discharge from New York custody, subject only to the unique holding provision of CPL 570.44. Therefore, if the Governor does not act under CPL 570.44. and the record on this point is silent, the natural procession is for the detainee to be released to the foreign state under whichever time frame is applicable.
There remains one further wrinkle to be addressed: when the detainee also has a separate New York open case in which there is a securing order that he has not satisfied and remains in custody under the New York order, or when the detainee is a sentenced prisoner subject to an order of commitment, other procedures will have to be utilized to accomplish his release to a foreign jurisdiction via extradition. The detainee's remand or unsatisfied securing order on the extradition docket will not impede his surrender to the requesting state, but If the detainee is also being held on his/her separate New York case in lieu of unmet bail or remand, he/she cannot be released to the foreign state while that hold remains in effect. Therefore, either the detainee must post bail on his open New York case or the court must remove that hold before the Department of Correction will release any defendant whose custody is mandated by an active securing order. If the separate New York case remains open when the detainee is released to the requesting jurisdiction, New York could then file its own extradition request in the foreign state seeking defendant's return after completion of the proceedings in that foreign state. The situation is somewhat different if the detainee being sought by the foreign state is a sentenced New York prisoner. Under those circumstances, the appropriate way to obtain detainee's presence in the foreign state would be pursuant to the Interstate Agreement on Detainers, Article 580 of the Criminal Procedure Law. That would provide for the temporary transfer of the prisoner to the foreign state and thereafter a return to New York upon the completion of the foreign state's proceedings.
In the instant matter, there has been no showing that a level of compliance with the requisites of CPL 570.44 has been met; at best, there is a statement purporting to provide accurately the Governor's "established policy", and this Court does not regard that as satisfying the statutory requirement as here interpreted of a formal statement by the Governor applicable expressly to this case. As defendant here waived extradition, the timetable of CPL 570.50 would be in effect, which as noted requires that defendant be delivered "forthwith" to agents of the demanding state upon their arrival to take custody of defendant. This does not imply that New York must surrender custody instantaneously — the foreign state, whose actions are not subject to New York statutory directives, must agree to appear to take custody of the detainee — but rather that, upon a commitment by the demanding state to appear in New York to take custody of the detainee, New York must deliver that person at the designated time of arrival, without unnecessary delay. Again, as suggested by Judge Dunn in People v. Frank , supra, the People's obligation to produce defendant for extradition must be subject to a "reasonable time to effect the extradition". There, the court set such time as thirty days, but there is no fixed statutory period and therefore no specific time frame that is triggered, rather a determination under the particular facts of a case that a "reasonable time" be allowed. As such, here the People may submit a direction by the Governor that is fully compliant with the provision of CPL 570.44 as interpreted by this decision in which she elects to hold defendant in New York for prosecution before extradition; or in the absence of such direction, a proposal for a schedule for delivery to Connecticut's extradition agents that is immediate — "forthwith" — but also practicable — "reasonable" — under all the circumstances. The determination that the People have complied with this order and any applicable schedule will measure their response commencing on the date they receive this opinion and decision .
As contemplated by this decision in which a strict interpretation of CPL 570.44 was announced, the People were accorded an opportunity to comply with the direction that a certificate from the Governor is necessary to hold defendant Dingle in New York State custody for prosecution on the New York Indictment before releasing him to the requesting state in the extradition matter. In timely fashion, the People obtained a signed and sealed Certificate of Election pursuant to CPL 570.44 (dated May 5, 2022) from Governor Hochal. Therefore, defendant Dingle will continue to be held on the securing orders issued in connection with both the extradition warrant and the New York State charges and will not be released to Connecticut until the New York State charges are resolved. This Court has been advised by the District Attorney's Office that henceforth that Office and the Governor's Office will abide by the procedures discussed in this opinion and will obtain a formal Certificate of Election signed by the Governor in any case in which New York State chooses to hold a defendant for New York prosecution and to suspend his/her release to a foreign state pursuant to an extradition warrant pending resolution of the New York charges. A copy of the Certificate of Election issued in this case is available online (cached at https://nycourts.gov/reporter/webdocs/CertificateofElection.pdf).