In a habeas corpus proceeding, the appeal is from a judgment of the Supreme Court, Suffolk County (Pitts, J.), dated July 6, 2006, which, after a hearing, sustained the writ, vacated a Governor's warrant for extradition of the petitioner to the State of South Carolina, and dismissed the fugitive complaint.
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This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., FRED T. SANTUCCI, RANDALL T. ENG & ARIEL E. BELEN, JJ.
ORDERED that the judgment is reversed, on the law, without costs or disbursements, the writ is dismissed, the Governor's warrant for extradition is reinstated, the fugitive complaint is reinstated, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith.
On April 8, 1976, an individual using the name Larry Wayne Barnett (hereinafter Barnett) pleaded guilty to forgery in the State of South Carolina, and was sentenced to seven years imprisonment, to run concurrently with an earlier sentence imposed for grand larceny. On August 18, 1976, Barnett escaped from custody and fled to New York. In 1993, South Carolina officials prepared extradition papers, but the then-Governor, Carroll A. Campbell, Jr., refused to sign the authorizations necessary to initiate extradition, determining that "exceptional circumstances" weighed against extradition, including Barnett's rehabilitation, long-term marriage, work history, and severe health problems.
No further action was taken by the State of South Carolina to extradite Barnett until October 2005, when an individual using the name Howard Glenn Blake, who was returning from vacation, was detained at JFK Airport after a computer entry indicated that he was wanted in South Carolina as Larry Wayne Barnett. Subsequently, the South Carolina Board of Corrections assembled the necessary certified records, including a certified copy of a certificate of extradition for Barnett for the crime of escape from confinement, a judge's affidavit attesting to the charge of escape, and a copy of an arrest warrant for escape, and forwarded them to the office of the present Governor of South Carolina, Mark Sanford. On January 9, 2006, Governor Sanford signed a Governor's Requisition, seeking extradition of Barnett. On January 12, 2006, then-New York State Governor George E. Pataki signed a Governor's Warrant for extradition of "Larry Wayne Barnett, a/k/a Larry Wayne Barnette, a/k/a Larry W. Barnett, a/k/a Larry W. Barnette, a/k/a Wayne Barnette, a/k/a Howard Glenn Blake" to South Carolina on the charge of escape. On February 20, 2006, the Suffolk County Fugitive Squad arrested the petitioner, and he was arraigned on a fugitive complaint. The petitioner was released on bail of $5,000.
On April 27, 2006, Blake, alleged to be Barnett (hereinafter the petitioner), filed an amended petition for a writ of habeas corpus, seeking to vacate the extradition warrant upon the grounds of fugitivity, waiver, estoppel, and due process. He reserved his right to contest whether he was the person named in the extradition warrant. The Suffolk County District Attorney's Office opposed the motion. The Supreme Court sustained the writ, finding that petitioner was not a fugitive from the State of South Carolina because, in 1993, "South Carolina, through the very clear, unambiguous, unequivocal, unchallenged actions of its governor, affirmatively stopped seeking the return of the petitioner." We now reverse, and remit to the Supreme Court for further proceedings.
"It is well established that once the Governor of an asylum State has directed extradition, 'a court considering release as habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive'" (emphasis in original) (People ex rel. Strachan v Colon, 77 NY2d 499, 502, quoting Michigan v Doran, 439 US 282, 289; see People ex rel. Angell v Scoralick, 265 AD2d 354). A fugitive from justice is a person who has committed a crime while physically present within a state and has fled from that state to another without waiting to abide the consequences (see People ex rel. Strachan v Colon, 77 NY2d at 502). Fugitive status does not depend upon the motive for departure from the state, or upon the question of whether or not charges were pending prior to departure — it suffices that the person left (id.). The records in support of the South Carolina Governor's warrant are sufficient to support then-Governor Pataki's finding of fugitive status (see CPL 570.08). The Supreme Court improperly determined that the then-Governor of South Carolina essentially pardoned the petitioner. There is nothing in the record to support this conclusion. Indeed, the Suffolk County District Attorney's Office averred that then-Governor Campbell denied an application for pardon (see South Carolina Const art IV, § 14 ["With respect to clemency, the Governor shall have the power only to grant reprieves and to commute a sentence of death to that of life imprisonment. The granting of all other clemency shall be regulated and provided for by law"]).
We acknowledge the existence of extenuating circumstances in this case, as set forth by our dissenting colleague. However, because there are only four issues cognizable in a habeas corpus challenge to a Governor's extradition warrant, the petitioner must make his equity arguments in the South Carolina forum (see California v Superior Court, San Bernardino County, 482 US 400, 407-408 ["extradition proceedings are . . . 'emphatically' not the appropriate time or place for entertaining defenses or determining the guilt or innocence of the charged party . . . [for] [t]hose inquiries are left to the prosecutorial authorities and courts of the demanding State"); Biddinger v Commissioner of Police of City of New York, 245 US 128, 133 [courts of extraditing state may not consider statute of limitations defense]; Strachan v Colon, 941 F2d 128, 131 [habeas court could not consider 40-year laches defense to extradition]).
The petitioner's remaining contentions are without merit.
MASTRO, J.P., SANTUCCI, and ENG, JJ., concur.
BELEN, J., dissents and votes to affirm the judgment, with the ...