People ex rel. Swanston v. Pelkey

Spain, J.

Appeal from a judgment of the County Court of Franklin County (Main, Jr., J.), entered July 1, 2005, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, after a hearing.

In June 2003, a grand jury in Arizona indicted petitioner for the crime of fraudulent schemes and artifices, a class 2 felony, alleging that petitioner defrauded 14 individuals in violation of Arizona laws. Petitioner was located in the Town of Malone, Franklin County, and arrested pursuant to a warrant for extradition issued by the Governor of New York for the return of petitioner to Arizona, which was based on the requisition application of the Governor of Arizona. Petitioner subsequently filed an application for a writ of habeas corpus contesting the extradition request (see CPL 570.24).

After a hearing, County Court denied the application and dismissed the writ, but granted a stay of petitioner’s return to Arizona for 30 days in an order entered July 1, 2005. This Court denied petitioner’s request for a stay pending appeal on July 28, 2005. Petitioner now appeals, alleging that the Arizona indictment failed to “substantially charge” him with a crime in that state in violation of CPL 570.08 and failed to provide him with sufficient information regarding the alleged crimes in violation of his constitutional rights.

However, by order entered August 25, 2005, County Court directed that petitioner be released from custody in the Franklin County jail unless officials of Arizona appear and accept delivery of him for extradition by 4:00 p.m. on August 26, 2005. The County Attorney of Franklin County has informed this Court that petitioner was so returned to Arizona on or about August 26, 2005, where he remains in custody, and is no longer in this jurisdiction. Since petitioner would be entitled to no more than release from custody in this state if his writ were granted, his release and return to Arizona renders this appeal moot (see People ex rel. De Gina v McMahon, 29 NY2d 550, 551 [1971]; People ex rel. Schoenwandt v Travis, 23 AD3d 806 [2005]; People ex rel. Limmer v McKinney, 23 AD3d 806, 807 [2005]; People ex rel. McKinnon v Infante, 108 AD2d 1026, 1027 [1985], lv denied 64 NY2d 612 [1985]).

Cardona, P.J., Crew III, Peters and Kane, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.