Relator moves by petition for a Writ of Habeas Corpus for this Court to vacate the Governor's Warrant for extradition issued by New York State Governor Eliot Spitzer on March 5, 2007.

Relator also submits a memorandum of law in support of his petition.

The Attorney General of the State of New York submits letter authorizing the Sullivan County District Attorney to represent the respondent.

The respondent, through the Sullivan County District Attorney's Office, submits an affirmation in opposition with a memorandum of law and an affidavit in opposition from the Attorney General of the State of California.

Following the above submissions, this Court held oral argument on April 26, 2007.

Transcript of the above oral argument was recieved by the Court on April 30, 2007 and this matter was marked fully submitted.

Relator argues that the New York State Governor's Warrant for extradition should be vacated upon two grounds: 1. that relator is not a "fugitive" as defined by the Uniform Extradition Act and 2. that relator is being denied his due process rights under the constitutions of New York State and the United States due to the extraordinary delay in lodging of charges in California for crimes that took place in 1971.

Relator was a member of the Black Panthers and the Black Liberation Army which were formed in 1966 during the what was called the "Black movement" and whose goal was the political empowerment of Black people in the United States.

On May 21, 1971, as a member of the Black Liberation Army, relator was involved in the shooting murders of two New York City Police Officers. He fled to the State of California where he was charged in 2007 with murder for the shotgun homicide of a San Francisco Police Officer [*2]on August 29, 1971 and conspiracy to commit murder of other law enforcement officers in the State of California.

Relator, for the first time, was charged in California by felony complaint dated January 18, 2007 with the shotgun murder of San Francisco Police Officer John Young on August 29, 1971 and five overt acts of conspiracy to commit against other law enforcement officers.

After allegedly committing said crimes in California, relator fled to the State of Louisiana where he was arrested in 1973. He was then extradited to the State of New York for the May 21 1971 homicides.

He was convicted, after jury trial, and is currently serving two concurrent terms of twenty-five to life prison in the State of New York. He has been denied parole twice and his next appearance before the parole board is scheduled for January, 2008.

Extradition is mandated by the Federal Constitution (Art. IV), Federal Statute (18 USC 3182) and New York State Law (CPL 570).

Once the Governor of an asylum state, in this case New York, has issued an Extradition Warrant, a court may only decide four issues when considering habeas corpus relief: 1. whether the extradition documents meet statutory requirements, 2. whether the relator has been charged with or convicted of a crime in the demanding state, in this case California, 3. whether the relator is the person named in the extradition request, 4. whether the relator is a fugitive from the demanding state. People ex rel Strachen v Cotton, 77 NY2d 499 (1991); California v Superior Court of California, 482 US 400 (1987); Michigan v Doran, 439 US 282 (1978).

The relator herein does not contest the first three issues above. He does, however, argue that he does not fit the meaning of fugitive under the extradition statutes.

The Uniform Criminal Extradition Act, codified under CPL 570, is the New York State equivalent that mirrors the Federal extradition statute. [*3]

The Governor of an asylum state has a mandatory duty to issue an Extradition Warrant when the demanding state requests the arrest and delivery of a person who has committed treason, felony, or any other crime and is found in the asylum state.

See, CPL 570.06.

Relator argues that he was not "found" in New York State after fleeing California. He was "found" in Louisiana, in 1973, and involuntarily extradited to New York State to answer the May, 1971 murder charges that led to his current incarceration in the New York State Prison System.

"The act does not cover such a situation. In its definition of what a fugitive is in the opening section of the act it states that the governor is empowered and this state is empowered to transfer to a demanding state someone found in this state, and in this particular situation he was not found in the State of New York. He was found in the State of Louisiana and, in fact, in 1973 when he was found he was interrogated by both federal and California authorities concerning the very crimes for which he is now brought up on charges 34 years later and they took no action at that time." See, Transcript of Oral Argument, April 26, 2007, P. 2.

Relator's argues semantics, that he was originally found in Louisiana and not New York, and the defendant is in error.

Relator is in state prison in New York and has been since 1973. The fact that he was extradited, in 1973, from Louisiana to New York does not alter the facts that at the time California charged him (January, 2007) and then requested the arrest and deliver of the relator he could be found in the State of New York.

People ex rel DiMeo v Artus, 36 Ad3d 1091 (App. Div., 3rd Dept. 2007) is strikingly similar to the case at bar.

DiMeo committed crimes in Connecticut. He then fled to New York where he committed further crimes before fleeing to New Jersey where he was arrested. New York extradited DiMeo to face his crimes committed in New York. Thereafter, Connecticut sought extradition from New York for crimes committed in Connecticut.

In DiMeo the third Department found that a person who committed crimes in Connecticut, fled to New York and further fled to New Jersey could be extradited to Connecticut from New York, because, at the time Connecticut sought extradition he was found in New York, notwithstanding that he was in New York after being extradited from New Jersey. [*4]

"...petitioner committed several felonies in Connecticut, fled from justice in that state without waiting to abide the consequences' People ex rel Strachen v Colon, 77 NY2d 499....(1991) has been charged with those felonies and can presently be found in New York. Thus, even though he is in New York because he was extradited here from New Jersey, he is most decidedly a fugitive within the meaning of CPL 570.06 and therefore subject to mandatory extradition. (citations omitted)."

People ex rel DiMeo v Artus, supra.

This Court concurs with DiMeo and finds that the relator herein is a fugitive within the meaning of CPL 570.06 and must be delivered to the State of California for extradition.

Relator's second argument regarding violation of his due process rights has no merit.

California has jurisdiction over the prosecution of relator's crimes therein. Any procedural, evidentiary or statutory issues ^[FN1] must be dealt with by the court which has jurisdiction in California. See, California v Superior Court of California, supra.

Based upon the above, it is

ORDERED, that relator's petition for a Writ of Habeas Corpus is denied, and it is further

ORDERED, that pursuant to the New York State Governor's Warrant the Superintendent of the Sullivan County Correctional Facility shall keep Herman Bell secured and in custody of the New York State Department of Corrections, and it is further

ORDERED, that Herman Bell shall be delivered to Inspector Joseph W. Engler and/or designated agent(s) of the San Francisco Police Department authorized to receive, convey and transport Herman Bell to the State of California and said authorities from the State of California are to receive Herman Bell, no later that thirty days from the date hereof.

This shall constitute the Decision and Order of this Court.

DATED: May 8, 2007

Monticello, NY 12701

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge [*5]

and Surrogate