People ex rel. Hervey v. Oslwyn

51 A.D.2d 519, 379 N.Y.S.2d 68, 1976 N.Y. App. Div. LEXIS 10715

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 20, 1976
• Status: Published

Opinion

Judgment, Supreme Court, New York County, entered August 8, 1975, dismissing relator-appellant’s petition for a writ of habeas corpus and directing that he be delivered to the custody of an agent of the State of Georgia for extradition to that State, unanimously affirmed. The sole issue raised by the relator was his presence in the demanding State at the time of the alleged crime. On this point the evidence was conflicting. The trial court believed the evidence that relator was in the demanding State. Relator has failed to sustain his burden of proof by clear and convincing evidence that he was not in the demanding State at the time. (People ex rel. Harris v Warden, 42 AD2d 549.) An alibi defense is not to be tried out on habeas corpus attacking extradition. (Munsey v Clough, 196 US 364.) Concur—Kupferman, J. P., Lupiano, Silverman, Lane and Nunez, JJ.