Opinion
February 19, 1962
In a habeas corpus proceeding, brought by relator pursuant to section 838 of the Code of Criminal Procedure, to test the legality of his arrest and attempted extradition to New Jersey under a warrant issued by the Governor of the State of New York (Uniform Criminal Extradition Act, Code Crim. Pro., §§ 827-859), the People appeal from an order of the Supreme Court, Kings County, made September 20, 1960 upon the decision of the Special Term after a nonjury trial, which sustained the writ, vacated the warrant of extradition and discharged the relator from custody. The decision of the Special Term has been inadvertently omitted from the printed record. But the decision has been published (N.Y.L.J., Sept. 21, 1960, p. 15, col. 1), and this court may take judicial notice of it. Order reversed on the law and the facts, without costs, writ dismissed, and relator remanded to the custody of the authorized police officers representing the State of New Jersey for the purpose of returning and delivering him to said State. Findings of fact which may be inconsistent herewith are reversed, and new findings are made as indicated herein. We find on this record that the relator failed to establish conclusively that he was not present in the demanding State at the time of the commission of the alleged crime. In the absence of such conclusive proof, the extradition warrant must be honored and the relator surrendered ( People ex rel. Higley v. Millspaw, 281 N.Y. 441, 447; People ex rel. Fong v. Honeck, 253 N.Y. 536, and cases therein cited). Ughetta, Acting P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.