Criminal Court of the City of New York, New York County, April 14, 2023

Alvin Bragg, District Attorney (Madeleine Guilmain of counsel), for the People.

The Legal Aid Society (Eliza Orlins of counsel) for defendant.

By oral application of April 12, 2023, the People seek a ruling that defendant's Connecticut probation agreement constitutes a waiver of defendant's rights concerning extradition from New York to Connecticut. The People's application is denied. The Connecticut probation agreement does not constitute a valid waiver of defendant's extradition rights in New York.

Procedural History

On December 14, 2021, defendant Kindell Harris was released to probation in a criminal matter in the State of Connecticut. Pursuant to his release, Mr. Harris signed a Connecticut Department of Probation document (probation agreement) by which he agreed to a number of conditions of his probation. Condition number 5 of those states "agree to return (waive extradition) from any other state, territory, or jurisdiction," in the event that he violated the conditions of his probation there and was detained in another state. On February 7, 2023, Harris was arrested in New York and charged with robbery in the first degree (Penal Law § 160.15 [1]) and related charges (hereafter, the local matter). Harris is currently incarcerated on $35,000 bond in that matter.

On February 8, 2023, Harris was arraigned on his local matter and upon a fugitive warrant in New York County Criminal Court. At his arraignment on those matters, Harris elected not to sign the New York Criminal Court's waiver of extradition to Connecticut. On the fugitive arraignment form, the court checked the box requiring that defendant be committed to the custody of the Department of Correction for a period not to exceed 90 days, "to enable his arrest to be made under a Warrant of the Governor of this State on a requisition of the executive authority having jurisdiction of the offense."

On March 8, 2023, counsel for Harris suggested—though did not argue or ask for a ruling—that Harris' Connecticut probation {**79 Misc 3d at 522}agreement might not constitute a valid waiver of extradition procedures, but rather is merely a condition of his probation in Connecticut, in which case a Governor's warrant would be required to extradite him. The People stated their contrary position, that despite Harris' declination of a waiver of a Governor's warrant of extradition at his [*2]arraignment, the provision of his Connecticut probation agreement stating that he agreed to waive extradition constitutes a valid waiver. No ruling from the court was sought or issued on that date, and the matter was adjourned to May 8, 2023, approximately the 90th day after defendant's arraignment, for a Governor's warrant.

On April 3, 2023, the People requested that the case be advanced for the court to rule on whether Harris' probation agreement constitutes a waiver, in which case a Governor's warrant would not be necessary, or whether a Governor's warrant of extradition is required because Harris elected not to sign the New York Criminal Court's waiver of extradition at arraignment. The case was advanced to April 12, 2023, for further arguments on the issue. The People provided several cases in support of their position. The court adjourned to Friday, April 14, 2023, for a ruling.

Law

Pursuant to the Uniform Criminal Extradition Act, codified in CPL article 570,

"it is the duty of the governor of this state to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state" (CPL 570.06).

Pursuant to CPL 570.24, a person arrested on a fugitive warrant must first be brought to court and informed of his right to counsel and to test the legality of his arrest via a writ of habeas corpus. Pursuant to CPL 570.50, however, a defendant may waive formal extradition proceedings after the judge has informed the arrested person of his rights to the issuance of a Governor's warrant and to obtain a writ of habeas corpus. CPL 570.50 contains a proviso that this waiver procedure shall not "be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this state" (id.).

Upon fugitive arraignment in New York County Criminal Court, a defendant is provided with a form titled Waiver of{**79 Misc 3d at 523} Governor's Warrant of Extradition and Writ of Habeas Corpus. The waiver informs the defendant of the specific crime(s) for which the defendant is wanted in the demanding state. It informs the defendant of the right to legal counsel concerning the extradition matter. It further informs the defendant of his right to the issuance and service of a Governor's warrant. And it notifies the defendant of the right to challenge extradition via a writ of habeas corpus. By signing the waiver, the defendant acknowledges: that he has been informed of these rights by a Judge of the Criminal Court of the City of New York; that he has discussed these rights and the matter of waiver of extradition with his attorney; and that, after being advised by counsel of all of his legal rights with respect to extradition, the defendant waives those rights and consents to return to the demanding state, as if a Governor's warrant had been issued. All of that process constitutes a valid waiver of extradition.

The New York extradition waiver form includes a recently added clause in which defendant acknowledges that he will not be returned to the demanding state until any open criminal matters in New York are resolved. This clause serves as a waiver of CPL 570.44, which provides that where a defendant is wanted by another state and has a local criminal matter pending, "the governor, in [her] discretion, may either surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this state."

Discussion

The issue before the court is whether Harris' signature on his Connecticut probation form, containing a prospective agreement to waive extradition, itself constitutes a valid waiver, despite the fact that at arraignment in New York, he refused to waive extradition, thus invoking his right to a Governor's warrant.^[FN1] The inquiry here is not about the procedural aspects of a waiver of extradition.^[FN2] CPL 570.50 makes clear that the process for executing a waiver is not limited to a singular mechanism or procedure. Thus, a waiver of extradition may be executed{**79 Misc 3d at 524} prospectively, and a valid waiver may be a component of the parole or probation process. The inquiry here, however, is a substantive one. The court's concern is whether Harris executed a valid waiver of extradition—one that was knowing and voluntary—when he entered into his Connecticut probation agreement. He did not.

In support of their argument that Harris' Connecticut probation agreement constitutes a waiver of extradition, the People submitted four trial court cases and acknowledged the absence of any appellate authority on this issue. A theme of these cases—indeed, a principle critical to the determination of any waiver—is that to validly waive extradition rights, a defendant must be aware of those rights and that they are being waived. Plainly, a waiver of a constitutional right must be knowing, intelligent, and voluntary (see People v Seaberg, 74 NY2d 1, 11 [1989]; People v Hobson, 39 NY2d 479, 484 [1976]). In the context of that fundamental principle, the cases presented weigh against interpreting Harris' Connecticut probation agreement as a knowing and voluntary waiver of extradition.

Two of the cases cited by the People, People v Gordon (176 Misc 2d 46 [Crim Ct, Queens County 1998]) and People v Lattimore (138 Misc 2d 20 [Crim Ct, NY County 1987]), concern defendants released on parole, rather than probation. Gordon concerned a New York State parolee, arrested and returned to New York from Tennessee pursuant to an explicit waiver of extradition executed pursuant to his parole release. The parole agreement in Gordon included express language by which the defendant waived his right to contest extradition.^[FN3] In Lattimore, defendant was a Georgia parolee who, as part of his parole, "signed a pre-release waiver" in [*4]which "[t]he language in the Georgia document providing for such waiver is explicit{**79 Misc 3d at 525} and unequivocal" (138 Misc 2d at 21-22). The People's third case, People v Corder (132 Misc 2d 444 [Monroe County Ct 1986]), likewise contained a more thorough explanation of what defendant was agreeing to (see 132 Misc 2d at 445 [condition of probation agreement stated probationer freely and voluntarily agreed to return to Texas, waived all formality, and would willingly return "without the Governor's requisition or other papers legally necessary in such cases"]).

Unlike the parole and probation agreements in those three cases, the provision concerning extradition contained in the Connecticut probation agreement that Harris signed is neither explicit nor unequivocal. There is nothing in the agreement suggesting that Harris was informed of his rights concerning extradition—that upon arrest in another jurisdiction he would have a right to contest extradition and return to Connecticut—and thus, there is no indication that he was aware that his signature on that document would constitute a waiver of that right.^[FN4]

In People v Isaacs (139 Misc 2d 323 [Rockland County Ct 1988]), the court considered extradition of a defendant to Arizona where the Arizona probation agreement included a prospective waiver of extradition. In that agreement, the defendant "signed a one-sentence statement indicating, without elaboration, that she agreed to waive extradition for any related probation revocation proceedings" (id. at 324). The court found that "the written prospective waiver, standing alone without a hearing, is not a sufficient waiver of extradition" (id. at 326). Absent some showing that the defendant was aware of her rights to contest extradition and that she knowingly waived those rights, the defendant was not deemed to have waived extradition. The same is true here. The Connecticut probation agreement does not contain any language suggesting that Harris was informed of his rights concerning extradition, what rights he might waive, or what would be the effect of waiving those rights. There is simply nothing in the one relevant sentence of the Connecticut probation agreement that could support a claim that Harris knowingly, intelligently, and voluntarily{**79 Misc 3d at 526} waived his extradition rights, as provided in the New York Criminal Court Waiver of Extradition. Thus, the Connecticut agreement that Harris signed does not constitute a waiver of Harris' rights with respect to extradition in New York. The People must obtain a Governor's warrant to extradite Harris.

Finally, a critical concern of the People is their ability to detain Harris in New York through the pendency of the felony matter for which he is currently incarcerated on bail. Whether or not Harris waived his right to a Governor's warrant, the People may not hold him beyond 90 days from his arraignment absent action by the Governor of New York pursuant to CPL 570.44. Even if the Connecticut probation agreement could be characterized as a waiver, it is highly unlikely that Harris would have been informed of New York's recently-added extradition-waiver condition prohibiting his return to Connecticut until his New York criminal cases are complete. Nor is it likely that Connecticut was aware of—or would condone—such a [*5]condition, as the intent of Connecticut's probation agreement is surely to expedite return there, not to delay until New York matters are complete.^[FN5]

"In the event that I leave the jurisdiction of the State of New York, I hereby waive my right to resist extradition to the State of New York from any state in the union and from any territory or country outside the United States. This waiver shall be in full force and effect until I am discharged from parole or conditional release. I fully understand that I have the right under the Constitution of the United States and under law to contest an effort to extradite me from another state and return me to New York. I freely and knowingly waive this right as a condition of my parole and conditional release" (Gordon at 49 n 3).