People ex rel. Degina v. Delaney

53 A.D.2d 880, 385 N.Y.S.2d 332, 1976 N.Y. App. Div. LEXIS 13712

Opinion

In a habeas corpus proceeding, petitioner appeals from a judgment of the County Court, Westchester County, dated July 3, 1975, which dismissed the proceeding and denied his application to dismiss an extradition warrant issued by the Governor of the State of New York. Judgment reversed, on the law, without costs or disbursements, and proceeding remitted to the County Court for the purpose of holding a hearing and rendering a new determination in accordance herewith. A hearing is required to resolve the factual issue of whether relator was present in the demanding State when the crime charged was committed (see People ex rel. Higley v Millspaw, 281 NY 441; People ex rel. Torre v Warden, House of Detention for Men, Dept. of Correction, 35 AD2d 530; People ex rel. Hines v Markley, 31 AD2d 538; People ex rel. Grant v Doherty, 21 AD2d 829). Once the respondents offer into evidence the demand for extradition by the Governor of New Jersey together with the papers previously submitted to the County Court, a prima facie showing of petitioner’s presence in the demanding State when the crimes charged are alleged to have been committed will have been made. The burden will then shift to petitioner to establish, by conclusive evidence, that he was not in the demanding State when the crime was committed (see People ex rel. Higley v Millspaw, supra). Hopkins, Acting P. J., Latham, Cohalan, Titone and Hawkins, JJ., concur.