People ex rel. Mikulec v. Braun

112 A.D.2d 803, 492 N.Y.S.2d 305, 1985 N.Y. App. Div. LEXIS 56055

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1985
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: CPL 570.16 is inapplicable to the facts of this case. Even though one act of the conspiracy may have occurred in Florida, the indictment and supporting documents allege that other acts comprising the crimes occurred in South Carolina and this is sufficient to permit extradition under CPL 570.08.

Since relator is accused of conspiracy and procuring arson, rather than committing the arson himself, an indictment stating "on or about” the date of the fire is sufficient to encompass a period of time prior to the time of the actual fire. Relator’s proof that he was not in South Carolina on the date of the fire or three days before is thus insufficient to meet his burden to establish by "conclusive evidence” (People ex rel. Higley v Millspaw, 281 NY 441, 447) that he was not in the State when the crimes were committed.

We have reviewed relator’s other contentions, but find them to be without merit. (Appeal from judgment of Supreme Court, Erie County, Kubiniec, J. — habeas corpus.) Present — Doerr, J. P., Boomer, O’Donnell, Pine and Schnepp, JJ.