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In re Colasanti

Decided: January 8, 1969.

IN RE HUGO COLASANTI, PETITIONER-APPELLANT


Goldmann, Kolovsky and Carton.

Per Curiam

Petitioner Colasanti appeals from a county court order which rejected his attack on the validity of his arrest under an extradition warrant issued by the Governor of New Jersey and ordered him turned over to representatives of New York state for return to that state.

Except as hereinafter noted, the basic facts are uncontradicted.

On December 28, 1967, the New York County Grand Jury returned an indictment against Colasanti charging that he had on October 17, 1967, in New York City, committed the crimes of criminal possession of stolen property in the first degree, criminal possession of a dangerous drug in the third degree and criminal possession of a dangerous drug in the fourth degree.

Pursuant to the "uniform criminal extradition law," N.J.S. 2 A:160-6, et seq., the Governor of New Jersey, in response to a demand for appellant's extradition received from the Governor of New York, issued a warrant for petitioner's arrest. See N.J.S. 2 A:160-15. On March 25, 1968 petitioner was arrested under the authority of the Governor's warrant and when taken before the court stated that he desired to test the legality of his arrest. See N.J.S. 2 A:160-18.

Although N.J.S. 2 A:160-18 contemplates a written application for a writ of habeas corpus, the county court entertained petitioner's oral application therefor and conducted a plenary trial on May 13, 1968. In addition to hearing argument on the sufficiency of the extradition documents, the court heard the testimony of one Andrew Moore for the petitioner and of Detective Jeremiah Howard for the State of New York. Petitioner did not testify.

According to Moore, he was working with petitioner in New Jersey almost all day on October 17, 1967, the date when petitioner allegedly committed the offenses in New York. According to the detective, petitioner was in New York City on that day, at the corner of West and Houston Streets, under surveillance by the witness and other detectives from about 7:55 P.M. to 8:30 P.M., during which time petitioner among other things talked to one Ripa, a police undercover agent. Other New York City police officers who were at the hearing were not called, the prosecutor stating that their testimony would only corroborate what Detective Howard had said.

At the conclusion of the testimony, the court called for briefs and thereafter on May 31, 1968 delivered its oral opinion denying the relief sought by petitioner. It concluded that the testimony of the detective was more credible than that of Moore and found as a fact that petitioner was in New York at the time of the alleged offense and was a fugitive from justice in that state. The findings are fully supported by the record.

Petitioner's initial and principal argument on appeal -- that "the warrant of extradition should be quashed because it was issued out of time" -- is bottomed on the fact on December 18, 1967, prior to his indictment, and at the request of the New York City police, he had been arrested as a fugitive by Newark police officers. See N.J.S. 2 A:160-21, 22 authorizing such arrest. He was promptly brought before a magistrate, and having refused to waive extradition, was released on bail. See N.J.S. 2 A:160-24.

Appellant argues that since N.J.S. 2 A:160-23 provides that one arrested as a fugitive, as he was, may be committed

"to the county jail for such a time not exceeding 30 days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided ...


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