For the People: Jannette Lukowsky, Kings County District Attorney’s Office

For the defendant: Andrea Ferrante Michael D. Kitsis, J.

The defendant has filed a request for a writ of habeas corpus, challenging as unlawful his continued detention in this State as the result of a warrant issued by the State of New Jersey, charging the defendant with Theft by Unlawful Taking or Disposition in the Second Degree, N.J.S.A. 2″ target=”_blank”>People ex rel. Blake v. Ewald, 119 AD3d 824 (2d Dept. 2014). “[P]resumptions of regularity and accuracy attach to a Governor’s [*2]warrant and supporting documentation[.]” People ex rel. Bias v. Warden, 194 AD2d 816, 816 (2d Dept. 1993) (citations omitted). Once the People establish a prima facie case by submitting the necessary documentary evidence, the burden of proof shifts to the defendant and “requires production of clear and convincing evidence.” People ex rel. Harris v. Warden, 42 AD2d 549, 549 (1st Dept. 1973) (citations omitted).

Here, the extradition papers include: an Executive Warrant and Agent Authorization, signed by New York Governor Kathy Hochul; a letter from New Jersey Governor Philip D. Murphy requesting the apprehension of the defendant, as well as an Agent’s Appointment also signed by Governor Murphy; an affidavit by N.J. Deputy Attorney General Nicole Wise; an affidavit by N.J. State Trooper Travis Spadafora; a certification by N.J. Superior Court Judge Donna M. Taylor and Atlantic County Superior Court Deputy Clerk Jason Wertzberger; a complaint and warrant for the defendant charging him with the offense of Theft by Unlawful Taking or Disposition in the Second Degree on February 8, 2022 in Atlantic City, New Jersey, stating that Judicial Officer Timothy Maguire determined probable cause exists to support the complaint;[FN1] as well as a copy of the New Jersey statute defining the offense with which the defendant is charged. The Court finds that the People have established a prima facie case, see Michigan v. Doran, 439 U.S. 282, 289 (1978).

The defendant has failed to produce clear and convincing evidence to undermine the People’s prima facie showing. The defendant claims, without providing any supporting factual allegations, that he did not flee New Jersey but rather “left the state under compulsion.” Ferrante Motion to Controvert Governor’s Warrant ¶ 5 (Oct. 18, 2022). The defendant does not identify the source of the compulsion. Cf. Edelbaum ex rel. Miller v. Cuomo, 122 Misc 2d 1029 (Sup. Ct. Queens Co. 1984). The defendant has provided no basis for this Court to conclude that he left New Jersey involuntarily; furthermore, “it is immaterial to the status of the relator as a fugitive whether his absence from the demanding State or presence in the asylum State is voluntary or involuntary.” People ex rel. Schank v. Gerace, 231 AD2d 380, 387 (4th Dept. 1997) (citations omitted).

Although the defendant may object to the term “fugitive,” the courts have made clear that “To be a fugitive from justice . . . it is not necessary that the party charged should have left the State in which the crime is alleged to have been committed . . . for the purpose of avoiding a prosecution anticipated or begun, but simply that having within a State committed a crime, when he is sought to be subjected to its criminal process to answer for his offence, he has left its jurisdiction and is found within the territory of another.” People v. Hinton, 40 NY2d 345, 350 (1976) (quoting Roberts v. Reilly, 116 U.S. 80, 97 (1885)). See also People ex rel. Schank v. Gerace.

As the Court of Appeals has held, “in determining the defendant’s fugitive status, the only question is whether he was physically present in the demanding State when he allegedly committed the crime.” Hinton, 40 NY2d at 350. See also People ex rel. Strachan v. Colon, 77 [*3]NY2d 499, 502-03 (1991); People ex re. Hayden v. Phillips, 96 AD2d 912 (2d Dept. 1983). The sworn affidavit by New Jersey State Trooper Travis Spadafora alleges that the defendant committed the crime of Theft by Unlawful Taking or Disposition in the Second Degree inside The Toga Bar on the casino floor of Caesar’s Hotel and Casino, located in Atlantic County in New Jersey on February 8, 2022 (see Defendant’s Exhibit A). The affidavit thus alleges that the defendant was physically present in New Jersey at the time of the alleged offense, and so satisfies the People’s burden to establish a prima facie case. See, e.g., People ex rel. Degina v. Delaney, 53 AD2d 880 (2d Dept. 1976). The defendant has not presented any evidence or factual allegations in opposition, and consequently has failed to conclusively demonstrate that he was not present in New Jersey at the time of the commission of the offense. Compare People ex rel. Kokell v. Dooley, 158 AD2d 568 (2d Dept. 1990) (defendant and companion’s testimony that defendant was with companion in Long Island on date of offense insufficient to controvert police officer affidavit’s identifying defendant as perpetrator of offense in Connecticut).

With respect to the defendant’s identity, the only question for this Court is whether the defendant has been identified as the person charged with the crime. C.P.L. § 570.46. This Court has no authority to inquire into the defendant’s guilt or innocence with respect to the offense charged in New Jersey, nor to question whether New Jersey possesses sufficient evidence to convict the defendant beyond a reasonable doubt. Id.

The defendant argues that the extradition papers fail to contain “a true identification” of the defendant. Ferrante Motion to Controvert Governor’s Warrant ¶ 6 (Oct. 18, 2022). The defendant clearly misunderstands the nature of the identification that is required. “The identity of the name of the [defendant] with the name of the person named in the rendition warrant, raised the presumption that the persons were the same[.]” People ex rel. Teitebaum v. Ryan, 181 A.D. 404, 406 (2d Dept. 1918). Furthermore, Trooper Spadafora’s affidavit alleges that a still photograph taken from surveillance footage at the location where the crime occurred was disseminated to several law enforcement agencies, and that Investigator Seamus A. Lyons of the Rockland County Intelligence Center identified the still photograph as depicting the defendant. See Defendant’s Exhibit A. These facts sufficiently identify the defendant as the person charged with the crime in New Jersey under the standard required by C.P.L. § 570.46. See People ex rel. Bias v. Warden, 194 AD2d 816 (2d Dept. 1993); People ex rel. Kokell v. Dooley, 158 AD2d 568, 569 (2d Dept. 1990); People ex rel. Drake v. Oslwyn, 51 AD2d 240 (1st Dept. 1976).

The defendant has argued that the extradition papers are deficient due to a “lack of information contained in the Governor’s warrant[.]” Ferrante Motion to Controvert Governor’s Warrant ¶ 6 (Oct. 18, 2022). However, as is the case here, “once the governor of the asylum state has acted on a requisition for extradition based on the demanding state’s judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum state.” Michigan v. Doran, 439 U.S. 282, 290 (1978). Moreover, the People “are not required in an extradition proceeding to establish the defendant’s guilt beyond a reasonable doubt.” People v. Hinton, 40 NY2d 345, 353 (1976). Any challenge the defendant wishes to make as to the accuracy, admissibility, or constitutionality of the identification procedure must be “left to the prosecutorial authorities and courts of the demanding State, whose duty it is to justly enforce the demanding State’s criminal law — subject, of course, to the limitations imposed by the Constitution and laws of the United States.” People ex rel. Strachan v. Colon, 77 NY2d 499, 503 (1991) (internal citations omitted); see also People ex rel. Pray v. Allen, 63 AD2d 1056 (3d Dept. 1978).

The defendant has failed to identify a meritorious basis justifying his requested remedy. This Court may not “give sanctuary to a fugitive of another State without compelling cause.” People ex rel. Little v. Ciuros, 44 NY2d 825, 827 (1978). Since no such cause has been established, the defendant’s application for a writ of habeas corpus is hereby denied.

The foregoing constitutes the Decision and Order of the Court.Dated: November 18, 2022
Brooklyn, New York
Hon. Michael D. Kitsis, J.C.C. Footnotes

Footnote 1:”Under Art. IV, § 2 [of the U.S. Constitution], the courts of the asylum state are bound to accept the demanding state’s judicial determination since the proceedings of the demanding state are clothed with the traditional presumption of regularity. In short, when a neutral judicial officer of the demanding state has determined that probable cause exists, the courts of the asylum state are without power to review the determination.” Michigan v. Doran, 439 U.S. 282, 290 (1978).