People ex rel. McKinnon v. Infante , 485 N.Y.S.2d 583 ( 1985 )

Mahoney, P. J.

Appeal from a judgment of the Supreme Court at Special Term (Pennock, J.), entered April 23, 1984 in Albany County, which dismissed a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, after a hearing.

While petitioner was at Clinton Correctional Facility serving a sentence imposed by Albany County Court, the State of Hawaii lodged a detainer against him. Petitioner refused to waive extradition and, immediately after being released from prison in November of 1983, was arraigned as a fugitive from justice and committed to the Clinton County Jail (see, CPL 570.36). On December 13, 1983, this commitment was extended for 60 days (see, CPL 570.40). On February 7, 1984, petitioner was arraigned on a warrant for extradition executed by the Governor of the State of New York. Pursuant to a writ of habeas corpus, Supreme Court, Clinton County, directed that petitioner be released from custody due to the insufficiency of the Governor’s warrant.

After petitioner’s release on March 1, 1984, he was again arrested and arraigned as a fugitive from justice on March 20, 1984, this time in Albany County. Pursuant to another writ of habeas corpus, Supreme Court, Albany County, refused res judicata effect to the Supreme Court, Clinton County, judgment and dismissed the writ on the ground that the Governor’s warrant was sufficient. This appeal by petitioner ensued.

We need not consider petitioner’s allegations of error since the appeal has been rendered moot by the Governor’s issuance of another warrant on April 4,1984. Even if Special Term erred in dismissing the writ, petitioner would have been entitled to no more than a release from custody and would still have been a fugitive from justice subject to extradition (see, People ex rel. Keesee v Warden of Rikers Is. Adolescent Detention Center, 51 AD2d 756; Jones v People, 94 Misc 2d 304). Thus, the issuance of the second extradition order by the Governor has rendered this appeal moot.

Appeal dismissed, as moot, without costs. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.