People ex rel. Wohlford v. Warden of House of Detention for Men

Judgment, Supreme Court, Bronx County (William C. Donnino, J.), entered January 29, 1992, denying appellant’s petition for a writ of habeas corpus, unanimously affirmed, without costs.

Appellant was arrested on an extradition warrant from the State of Pennsylvania for burglary and related crimes. In the instant petition for a writ of habeas corpus, he challenges the warrant on various grounds including a denial that he was present in the demanding State at the time of the crimes *233charged. The petition was granted only to the extent of ordering an evidentiary hearing on the issue of appellant’s presence in Pennsylvania on the relevant dates. At this hearing, the People presented the warrant and supporting documents, as well as an affidavit from an accomplice, detailing the commission of the crimes and identifying appellant by name and photograph. It was then incumbent upon appellant to prove by conclusive evidence that he was not in Pennsylvania at the time (see, e.g., People ex rel. Friedman v Commissioner of N. Y. City Dept. of Correction, 66 AD2d 689). The court, finding that appellant’s witnesses were incredible and that he therefore failed to sustain his burden of proof, denied the writ.

There is no merit to appellant’s contention that the court erred in admitting the accomplice’s affidavit and concluding that appellant failed to sustain his burden of proof at the hearing. The affidavit was properly admitted into evidence, since hearsay, and indeed even unsworn affidavits, may be introduced at such a hearing (United States ex rel. Vitiello v Flood, 374 F2d 554; People ex rel. Kotch v District Attorney of Kings County, 170 AD2d 632). Moreover, upon a review of the record of the hearing, we find no reason to disturb the court’s rejection of the testimony of petitioner’s witnesses as incredible. Concur — Murphy, P. J., Carro, Milonas, Wallach and Smith, JJ.