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The People &C v. Luis Feliciano

May 5, 2011

THE PEOPLE &C., RESPONDENT,
v.
LUIS FELICIANO, APPELLANT.



The opinion of the court was delivered by: Read, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

On April 14, 1992, County Court in Greene County imposed a split sentence of six months in jail and five years of probation on defendant Luis Feliciano in exchange for a plea of guilty to a felony drug charge. After July 1, 1992, however, he stopped appearing for mandated weekly appointments with his probation officer, who received a report that defendant had fled New York for Puerto Rico. The probation officer investigated this information and ultimately filed a violation of probation (VOP) complaint with County Court on July 20, 1992, alleging that defendant had "absconded . . . by leaving for Puerto Rico without [his probation officer's] permission on 7/4/92." County Court declared defendant to be delinquent and issued an arrest warrant that same day (see CPL 410.30 [declaration of delinquency]; 410.40 [2] [warrant]; Penal Law § 65.15 [2] [providing that declaration of delinquency tolls probationary sentence until disposition of VOP complaint]).

In 2000, defendant was arrested in Pennsylvania for shooting his pregnant wife with a rifle and killing her. He was convicted in 2001 of involuntary manslaughter and a related weapon offense, and sentenced to consecutive prison terms of two and one-half to five years and two to four years, respectively, for these crimes. The Pennsylvania convictions caused the probation officer to discover defendant's whereabouts during the course of a periodic search of criminal records. On February 14, 2002, he lodged a detainer*fn1 with the Pennsylvania prison where defendant was incarcerated.

Defendant wrote County Court on July 8, 2002, declaring that he was "available for disposition" of the pending VOP complaint, and warning that he "intend[ed] to have [the] charges dismissed" if they were not "disposed in a timely manner . . . consistent with the laws governing speedy trial in New York." Defendant added that the detainer would "hamper any attempts that [he] might . . . make for pre-release programming . . . in Pennsylvania, thus making it necessary for [him] to have it dealt with as soon as possible."

On July 19, 2002, a week after he received defendant's letter, County Court issued a memorandum to the Greene County probation department, district attorney and public defender, attaching the letter. The Judge noted that a VOP hearing was not subject to statutory speedy trial rules; however, citing CPL 410.30, he scheduled an appearance for August 20, 2002 "in the interest of taking prompt, reasonable and appropriate action to cause defendant to appear and answer the pending Declaration of Delinquency." County Court asked the district attorney to "take appropriate action to ensure Defendant's presence"; and instructed everyone to be prepared for a revocation hearing on August 20th, if necessary.

On July 24, 2002, the district attorney informed County Court that arranging for defendant's extradition would be difficult, if not impossible, to accomplish: the district attorney had spoken with the State's extradition coordinator, who told him there was no "normal mechanism" to obtain defendant's attendance in County Court because the interstate agreement on detainers was "inapplicable." She advised that "normally extraditions would take place when a defendant [had] completed his prison sentence outside of New York State whereupon he would be made available for pickup and transport to a New York State Court."

As related by the district attorney, the extradition coordinator went on to say that, having handled over 3,000 cases in her five-year tenure, she had "never attempted an extradition of an out-of-state prisoner who [had] not completed his sentence to respond to probation violation charges in New York State," and that the "only way she could think of" to do this was an agreement between the Governors of New York and Pennsylvania. She suggested that "special circumstances would have to exist and be alleged" and that the Governor's Counsel "would be questioning" why an exception to the usual practice should be made. She also observed that the Governor's decision whether to proceed in this fashion "would be totally discretionary," and that New York "would have no control over whether the Pennsylvania Governor would exercise his discretion in entering into such an agreement."

Finally, the district attorney pointed out to County Court that waiting to extradite defendant would save the County the expense of a round trip. In light of the complications presented by defendant's out-of-state incarceration, the district attorney "request[ed] that the defendant's extradition . . . take place at the conclusion of his service of his Pennsylvania sentence rather than at the present time."

One day later, the Judge canceled the August 20th hearing in view of "the difficulties involved in attempting to produce [defendant], as well as the uncertainty as to whether such arrangement would be approved by the Governors of both Pennsylvania and New York." He determined that the VOP complaint would be "dealt with . . . at some time in the future upon [defendant's] release from the Pennsylvania Correctional System."

On January 14, 2003, defendant wrote County Court, imploring the Judge to facilitate disposition of the VOP complaint. On January 21, 2003, the Judge responded that he had "declined to schedule an appearance on the pending [VOP] prior to [defendant's] release from the Pennsylvania Correctional System" because of "uncertainty as to whether an extradition arrangement would even be approved by the Governors of Pennsylvania and New York"; and that there was "no reason to deviate from this prior determination."

On June 2, 2003, defendant filed a pro se motion in County Court. He complained about the risk of double jeopardy; he conceded that he was "guilty on this [VOP]," and asked the court "to fix this legal matter." County Court held a hearing on June 24, 2003, which was attended by the public defender, the district attorney and defendant's probation officer. When the Judge asked if there was any "consensus between the People and the defense counsel in regard to the issues . . . before the Court," the public defender responded that

"for due process purposes, the defendant ought to be brought back as expeditiously as possible for the purposes of addressing the issue of the [VOP] and closing that case once and for all, as opposed to allowing the case to linger for years until some day the defendant shall complete a prison term in the State of Pennsylvania."

The district attorney indicated that the People opposed defendant's production "at this time"; he suggested that the matter was not "ripe" until defendant was about to be released from the Pennsylvania prison. When the Judge asked for a specific date, the probation officer replied that defendant's earliest and maximum release dates in Pennsylvania were January 11, 2005 and July 11, 2009, respectively. The probation officer also observed that "one of the other concerns" in retrieving defendant for a VOP hearing before he completed his prison term in Pennsylvania was the "procedural nightmare and unnecessary travel."

At the end of the hearing, the Judge again concluded that defendant should be returned "at the finish of his Pennsylvania sentence." He issued a written decision and order to this effect, dated June 27, 2003, in which he also rejected what he understood to be defendant's argument that "double jeopardy prohibit[ed] [County] Court from sentencing him to a ...


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