Decision and Order Petitioners, parolees currently detained at the Nassau County Correctional Center (“NCCC”), are seeking immediate release on due process grounds. The Petitioners each received a final sanction for their respective parole violations. They were given the opportunity to enter a Department of Corrections and Community Supervision (“DOCCS”) 90-day treatment program, namely “voluntary Willard.” Petitioner King entered a plea of guilty to his parole violation and received his sentence on March 12, 2020 and Petitioner Hayes entered a plea of guilty to his parole violation and received his sentence on March 4, 2020. As of the date of this decision, the Willard program is not accepting new enrollees based on the current pandemic, thus the Petitioners seek immediate release. Petitioners further argue that their continued detention at the NCCC places them in immediate danger of contracting the COVID-19 virus that is the source of the pandemic. Such a possibility, they argue, should likewise result in their immediate release. The Attorney General’s office, through Assistant Attorney General Helena Lynch opposed the application. Initially, she argued that habeas corpus relief is not available to a prisoner prior to the expiration date of their sentence without a showing for the requested relief. Petitioner King’s parole sentence does not expire until January 7, 2021 and Petitioner Hayes’ parole sentence does not expire until July 21, 2023. Ms. Lynch further argued that the delay in transferring the two Petitioners to the Willard program should not result in their release as the delay is considered “reasonable” given the exigency of the current pandemic sweeping through New York State. The County Attorney’s Office, through Laurel R. Kretzing, Deputy County Attorney and attorney for Respondent takes no position on the Petitioners requested release for failure to be transferred to the Willard program in a timely manner. However, DCA Kretzing does oppose and object to the characterization of the NCCC as being overrun with COVID-19 infected inmates and thus unsafe for the petitioners to remain therein. For the reasons stated below, the Court will grant the release of the Petitioners based on the lack of specificity in determining when Willard will begin to accept new enrollees with the understanding that if transport resumes by June 1, 2020, these parolees are to report to their parole officers for transport to the program. Additionally, petitioners’ release is without prejudice to the validity of the revocation of parole that formed the basis for their current incarceration. Petitioners will be restored to parole supervision under the same conditions currently in effect and the assessment of the delinquency date, any recalculation of the maximum expiration date of the petitioner’s criminal sentence and any other consequences of the underlying revocation will be determined solely by DOCCS. Many courts have written decisions that deal with the delay between a parolee’s final sentence and transfer to the Willard program. Case law appears to suggest a presumptive forty (40) day window within which transfer should occur when there are no exigent circumstances extending that time frame. People v. ex rel. Woelfle v. Poole, 15 Misc. 3d 1101 (A) (Sup. Ct. 2007). The court in Woelfle held, “[r]etention for inordinate amounts of time without exigent circumstances raises due process concerns.” In People ex rel. Woelfle v. Warden of Rikers Island Corr. Facility, 38 Misc.3d 1208(A) (Sup. Ct. 2013), the court held, “[t]he legality of an extended period of pre-Willard incarceration is determined upon the facts or lack thereof bearing upon the reasonableness of the period of incarceration in the particular case.” The delay in Welch was approximately seventy-two (72) days. There is a litany of cases that order release of parolees who were delayed in entering a DOCCS treatment program and several others that provide reasonable excuses for the delay. In State ex rel. Wortham v. Bartlett. Index No. 5187, (Feb 20, 2018; Seneca County) the court held that a broken x-ray machine that prevented DOCCS from learning if a parolee had tuberculosis was a sufficient exigent circumstance to authorize the delay in transferring the parolee. Yet in Sanchez v. Yelich, the court expressed its concern in a sixty (60) day delay. 2013 NY Misc. LEXIS 2491 (Sup. Ct. Franklin County; June 10, 2013). Additionally, the court in Nelson v. State of New York, 20 Misc.3d 1125(A) (Ct. Ct. 2008), aff’d, 67 AD3d 1142 (2009) found that a 108-day delay was unreasonable while acknowledging that there is “[n]o statutory or regulatory time requirement by which a parole violator has to be delivered to Willard.” Id. (quoting, Ayala v. Williams, 7 Misc.3d 1025(A)). This case presents its own unique set of factors that must be considered in rendering this decision. First, the Country is in the middle of a pandemic and New York State is currently the most afflicted jurisdiction. As a result, the Governor of New York has instituted a freeze on movement throughout the State. Moreover, there is no estimate as to when the State will resume “normal” operations. Additionally, Willard is not accepting new enrollees and can not estimate when they will again accept participants into their program. Petitioner Hayes has been awaiting transfer since March 4, 2020 and Petitioner King has been awaiting transfer since March 12, 2020. Although at this time their delay does not meet the standard of “unreasonable” given the exigent circumstances surrounding the current pandemic, the court cannot predict for how long this delay will continue. Unlike a broken x-ray machine that can have a calculated date for repairs, there is no calculated date when movement into DOCCS will begin again. Based on the available information from the Governor, on the Courts virtual operations, on new edicts requiring more stringent use of masks, and on the need for testing before retail can re-open, it is unlikely that any movement will occur before June 1, 2020. That would place the time frame for delay at eighty-eight (88) and eighty (80) days respectively. Although on it’s face, that is not unreasonable given the exigent circumstances of the pandemic, the June 1, 2020 date is pure speculation on the part of the court and based on no factual evidence. The court was also asked by Petitioners to consider the conditions at the NCCC to inform its decision regarding release. This court does not find that these Petitioners are placed at a heightened risk of infection from their detention. First, the number of infected inmates at the jail has hovered in the twenties since April. There is no exponential increase of infections and those who are infected have been quarantined from the rest of the population. Second, the court has not been provided with any information that places these particular detainees at a heightened risk of becoming infected or suffering at a greater level should they become infected. As such, the conditions at the NCCC have played no part in this court’s decision to release these Petitioners. Based on the above, the court will thereby order that the Petitioners be released subject to other holds not related to this request; that they enter Willard if transportation is available by June 1, 2020; that the calculations of time related to parole supervision be at the sole discretion of DOCCS; that Petitioners release and the lifting of the detainers is without prejudice; that the Petitioners make immediate contact with their parole officers and follow all rules and regulations as set out by parole. Dated: April 16, 2020
