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Petitioner Sues Respondent for Child Support


In 1962, the accused left his wife and four minor children in California. His wife then entered into ‘a common law situation’ with a partner and adopted the name of her partner. A New York Family Lawyer said that thereafter, she applied in California for public assistance for the children claiming that she did not receive any support from the accused. In 1971 she signed a misdemeanor complaint charging him with nonsupport. It was later determined that appellant was residing in New York and later, a reciprocal support petition was forwarded to the Family Court in New York. Thereafter, the court ordered that appellant to pay $16 a week for child support.

A New York Child Custody Lawyer said that the mother signed a felony complaint in California charging that appellant did ‘willfully, unlawfully and feloniously and without lawful excuse, omit to furnish’ support for his min children in violation of section 270 of the Penal Code of California. The complaint was sworn to before a Judge of the Municipal Court who then issued a warrant for appellant’s arrest. He was arrested at his home in New York and held pending extradition proceedings.

Thereafter, an investigator from the District Attorney’s office in Orange County, California, sent an application for requisition to the Governor of California. The application states that appellant is properly charged, in due form, in accordance with the laws of this State with the crime of violation of section 270 of the California Penal Code, a felony, committed in the county of Orange’ and ‘That said fugitive from while out of the State of California, committed acts intentionally resulting in said crime in said county. In an affidavit attached to the application, the mother recited the history of the case as indicated above and also stated that she had not received any support from the accused since the entry of the New York Family Court order. In another affidavit to the same effect Woodington noted that ‘this office has received no funds from the defendant’. Both of these affidavits were sworn to before a Judge of the Municipal Court of Orange County.

The Governor of California signed the requisition demanding defendant’s return to California. Thereafter, the Governor of New York signed a warrant for defendant’s arrest and surrender to California authorities since he ‘stands charged in that State with having committed acts in the State of New York intentionally resulting in a crime in the State of California to wit: non-support, which acts would be punishable by the Laws of New York if the consequences resulting therefrom in the State of California had taken effect in New York’.

Defendant then commenced this proceeding by order to show cause to vacate the Governor’s warrant claiming that the documents supporting the warrant did not satisfy the requirements of CPL 570.16. A Bronx Family Lawyer said the Suffolk County Supreme Court treated the motion as an application for a writ of habeas corpus and vacated the warrant on the ground that the California felony complaint failed to allege that the defendant had committed acts in New York which would result in the commission of a crime in California. The Appellate Division reversed holding that the ‘affidavits submitted with the California complaint contain sufficient information to satisfy the requirement of CPL 570.08, 570.16.

On this appeal, defendant claims that the requirements of CPL 570.16 have not been met because (1) the California felony complaint ‘even if read with the supporting affidavits, does not establish that any acts were committted by defendant-appellant which would be a crime in New York’ and (2) the felony complaint ‘is defective in that it fails to contain the allegation that defendant-appellant committed an act in the State of New York which intentionally resulted in the commission of a crime in the State of California’.

A Bronx Family Lawyer said at the outset it is important to note that there is a fundamental distinction between the Governor’s power to extradite fugitives from justice and his power to extradite individuals who were not physically present in the demanding State at the time they allegedly committed the crime.

The Federal Constitution provides for the extradition of fugitives from justice. Section 2 of article IV states: ‘A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he has fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.’ The procedures to be followed in such cases are for the most part governed by Federal statute. The statute however is not ‘exactly coterminous with the power granted by the Constitution’ and the States are free to adopt their own procedures in those cases which are not covered by Federal law. Once the Federal constitutional and statutory requirements are met the Governor must comply with the demand for extradition even though the acts alleged would not be a crime under the laws of the asylum State.

At the heart of these provisions is the requirement that the accused shall have fled from justice in the demanding State. This requirement has nothing to do with the defendant’s state of mind at the time he departed. ‘To be a fugitive from justice’ the Supreme Court has noted ‘it is not necessary that the party charged should leave left the state in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that having within a state committed a crime, when he is sought to be subjected to its criminal process to answer for his offense, he has left its jurisdiction and is found within the territory of another. In other words, in determining the defendant’s fugitive status, the only question is whether he was physically present in the demanding State when he allegedly committed the crime. On the other hand, if the defendant committed a crime in the demanding State while not physically present there, the Governor of the State in which he is found is not obliged to surrender him.

Thus extradition of those who are not fugitives from justice in the constitutional sense still depends upon comity between the State. However until fairly recently the rule adopted in New York and most other States prohibited the Governor from surrendering anyone who was not physically present in the demanding State at the time of the crime.

The Uniform Criminal Extradition Act, which has been adopted by nearly all the States, now permits extradition in such cases. Section 6 of the act provides: ‘The Governor of this state may also surrender, on demand of the Executive Authority of any other state, any person in this state charged in such other state in the manner provided in Section 3 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose Executive Authority is making the demand, and the provisions of this act not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.

Here the defendant is charged in California with willfully omitting to furnish support to his minor children without lawful excuse. Section 270 of the Penal Code of California states: If a ‘father of either a legitimate or illegitimate minor child willfully omits without lawful excuse to furnish (support)’ he is guilty of a crime punishable by a fine and a maximum term of one-year imprisonment. The defendant does not dispute the fact that he is ‘substantially’ charged with committing a crime in California.

In addition of course it must be shown that he committed an act in California or another State intentionally resulting in a crime in California. The affidavits contained in the extradition papers show that the defendant was in New York, not California, at the time he failed to provide support. Furthermore the Governor’s demand alleges that the defendant committed an act in New York intentionally resulting in a crime in California. Nevertheless the defendant claims that the requirement of CPL 570.16 has not been met because the felony complaint does not contain a similar allegation.

CPL 570.08 says that there must be a written demand for extradition ‘alleging that the accused was present in the demanding state’. CPL 570.16 does not say how the necessary allegation should be made when the defendant was not in the demanding State at the time of the crime, but in our view the same rule should apply. This should not be considered a pleading requirement. If the Governor’s demand and the accompanying affidavits show that the defendant committed an act in New York intentionally resulting in a crime in the demanding State, this particular requirement of CPL 570.16 is satisfied.

The final and decisive question then is whether the act alleged would have been a crime in this State if it had had its effect here. The New York nonsupport statute is similar to California’s but not identical. It should also be noted that the statute was amended one month before the defendant was charged in California.

The defendant argues that he would not have been subject to prosecution in this State because all of his children are now more than 16 years of age. There is no merit to this argument. It is fundamental that when the age of the victim is an element of the crime, it is the age at the time of the crime, and not at the time of trial, which controls.

He also claims that there is nothing in the extradition papers to show that he had the ability to support his children through his financial resources or earning capacity. The People argue that the Family Court order entered in the reciprocal support proceeding established his ability prima facie. The court disagreed. The order simply directs the defendant to pay $16 a week for child support. That may establish the children’s needs, but it does not state that the defendant has the capacity to make the payments. There is no reference to the defendant’s financial resources, and although the order calls for a finding as to his earning capacity, that portion of the order was left blank and crossed out. The other papers attached to the Governor’s warrant are also silent on this point.

The People of course are not required in an extradition proceeding to establish the defendant’s guilt beyond a reasonable doubt. But when he was not present in the demanding State at the time of the crime, it must be established prima facie that he would have violated the laws of this State if the consequences had been felt here. That is the policy of this State expressed by statute and it means that there must, at least, be some showing of an evidentiary nature establishing every element required under the relevant New York penal statute. On this record there is nothing of an evidentiary nature showing that the defendant had the ability to furnish support out of his financial resources or by means of his earning capacity.

There are persons who are entitled to support but don’t know how to do it. Here in Stephen Bilkis and Associates, our Suffolk County Child Support attorneys will help you determine if you are entitled to support and the amount of support a person is entitled. Call us now and know your rights.

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