On Tuesday, April 14, 2020, petitioner filed this petition for a writ of habeas corpus. He is being held in custody mainly because of a parole warrant. He is alleged to have violated the conditions of his parole release for a host of reasons, most of which cannot be characterized as technical given their relation to the circumstances surrounding two recent arrests for Burglary in the Third Degree. Those open matters are being prosecuted in New York County. As they are non-qualifying offenses, there is no monetary bail set in those matters. However, there are two “dollar bail” holds that also prevent his complete release from custody. Petitioner does not challenge the legal validity of the parole warrant, which is lodged with the New York City Department of Corrections (“the City”). Instead, he seeks release from his Rikers’ Island jail facility based on a claim that both the City and the State are violating his right to due process. He argues that the City has acted with deliberate indifference to him by failing to adequately address the COVID-19 epidemic in a general way. He also claims that the State is acting with deliberate indifference to him because they are refusing to lift the parole warrant and release petitioner in the community. As noted, petitioner does not allege that his specific confinement conditions are themselves unsanitary. Petitioner, who is 54 years old, provided a letter from Correctional Health Services (“CHS”) stating that he has cardiovascular disease and is in the highest risk group for developing serious-illness related COVID-19 complications. CHS represents that petitioner is housed at the Anna M. Kross Center (“AMKC”). CHS also represents that it is employing “all available strategies to contain risks of exposure” to COVID-19 at city jails. The City submitted an affirmation in opposition to petitioner’s motion, along with affidavits from supervisory employees who implement the City’s COVID-19 containment and treatment protocols at Rikers’ Island, and who have personal knowledge of those protocols and the conditions at the City jails. One affidavit is from Patricia Feeney, Deputy Commissioner of Quality Assurance and Integrity; the other is from Richard D. Bush, Senior Correctional Institution Administrator for Health Affairs. Both affidavits document the wide provision of soap to all inmates, as well as the access all inmates are given to additional cleaning supplies. Jails are cleaned regularly. All inmates, including petitioner have been provided face masks since April 5, 2020; all personnel, including inmates, are mandated to wear these makes in all public areas of all jail facilities. The City tests detainees to determine whether they have been infected with this virus; the City isolates infected individuals and quarantines detainees suspected of but not yet confirmed to have been infected. Petitioner was served with and acknowledged receipt of these documents prior to the court appearance. Petitioner’s attorney, an assistant attorney general from the Office of the Attorney General (“OAG”) and the assistant district attorney (“ADA”) assigned to prosecute petitioner on his two most recent arrests, all appeared via SKYPE on April 15, 2020, before this Court, to argue the merits of the motion. The OAG submitted the allegations contained in the most recent violation of parole specifications that are the basis for the parole hold. The OAG also provided information about petitioner’s parole history on this matter, and information about the conviction and sentence which are the basis for his being supervised on parole. The ADA provided copies of the felony complaints on the two open burglary matters, as well as petitioner’s most recent criminal history report. Following the hearing, the Court reserved decision on petitioner’s application for release from custody. The Court now issues this decision, denying that application. First, even if petitioner established that either the City or the State have acted with deliberate indifference to his medical needs, it is this Court’s opinion that the remedy requested — release via habeas corpus — is not legally cognizable. Granting any individual’s release from custody due to prison conditions would be unprecedented. This remedy finds no support in appellate legal precedent, and petitioner provides no such authority in his memorandum of law. In fact, during the hearing, when questioned by the Court, petitioner did not cite a single appellate case recognizing that he is entitled to this remedy, even if he proves the City or the State violated his right to due process based on the manner in which they have addressed the COVID-19 epidemic, and specifically as it relates to him. The due process-linked deliberate or willful indifference test arises out of cases brought as class actions, or USC §1983 actions. These are the cases cited in petitioner’s papers in support of his requested remedy. When those courts, in those cases, have found the government acted with deliberate indifference to the medical needs of a class of inmates in a jail facility, or made that finding in the course of a civil lawsuit, the remedy has not been to release any named inmate or pre-trial detainee. See Bell v. Wolfish, 441 U.S. 520 (1979); Cooper v. Marin, 49 NY2d 69 (1979); People ex. Rel. Sanderson v. Duncan, 306 AD2d 716 (3rd Dept 2003); Bolton v. Goord, 992 F. Supp. 604 (S.D.NY 1998). In fact, even where courts have found that serious prison overcrowding has increased the risk of illness to medically vulnerable prisoners, an allegation that is strikingly similar to the one raised in this petition, and thereby found a due process violation occurred, the remedy is not to release an individual, medically-vulnerable prisoner; rather the remedy is to order the government to reduce the prison or jail population, and do so over a court-designated period. See Brown v. Plata, 563 U.S. 493, 499-502 (2011). Even then, that remedy can only be ordered under a federal statute that requires the case be heard, and ruled on, by a three-judge appellate panel. Id. Thus, the petition is denied on the grounds that defendant is not legally entitled to the specific remedy he seeks via this writ. Even if petitioner were entitled to the release remedy, he has fallen woefully short of establishing that either the City, or the State, is acting with deliberate indifference to him. This Court has found the City has addressed this serious public health crisis in its jails “with responsible concern, and attentiveness.” People ex. rel.Jackson v. Brann, Docket Nos. CR- 005432-20BX, and CR-005433-20BX, April 8, 2020, Supreme Court Bronx County (Fabrizio, J.): see also People ex. rel. Robinson v. Brann, Index No. 260217/2020, April 13, 2020, Supreme Court Bronx County (Fabrizio, J.).Those decisions explain, in great detail, the numerous steps the City has taken and the adjustments the City has made as the Center for Disease Control (“CDC”) has itself refined and adjusted its own guidelines for dealing with this unprecedented and dangerous public health crisis. The “Feeney” and “Bush” affidavits that are part of the record in this case document using facts that show the multiple, responsible steps taken by the City to address the spread of COVID-19 in the jails. Petitioner cites hearsay conversations between unnamed detainees and unidentified lawyers purporting to contradict the record made by the City to date. Once again, as it has in the past, the Court finds no credible evidence has been presented using only apocryphal anecdotes to contradict the sworn statements of City officials. In his writ papers, petitioner also cites data charting the climb in numbers of COVID-19 infected detainees at Rikers’ Island jails. In the City’s affirmation in opposition to this application, Assistant Corporation Counsel Christopher G. Arko challenges the validity of petitioner’s statistics in a significant way. First, Mr. Arko documents how dramatically the number of individuals in City custody has been reduced since March 16, 2020. That population, which stood at 5,447 detainees as of that date, was reduced to 4,218 detainees as of April 9, 2020, a decrease that is significant enough to increase the basic social distancing ability in the jails. However, most strikingly, Mr. Arko reports that the “total number of people in [City] custody has remained relatively flat: April 3-5, 239; April 6, 286; April 7: 287.” (Affidavit dated April 14, 2020 at 17). As the City argues, the “statistical speculation” about the exponential growth in COVID- 19 detainees in City custody in petitioner’s papers have been proven to be based on flawed calculations rendered irrelevant and invalid by real data. Thus, at this time, it not only appears to this Court that the repetitive arguments and charts and graphs that appear in all of the writs it has presided over are meritless, but that the City’s dedicated and relentless pursuit of protocols to contain the spread of the virus are, for now, resulting in the planned goals of these protocols, which is to significantly stop the spread of the virus in its jails. Moreover, the State has stepped up its own efforts to adjudicate the very parole writs that hold individuals like petitioner in the City jails while they await a resolution of their parole violation matters. Assistant Attorney General Stella Adegite represented on the record in this matter that Chief Administrative Law Judge Rhonda Tomlinson, who supervises the Bureau of Adjudication for the New York State Board of Parole, now has, up and running, a SKYPE-type video conferencing system for parole revocation cases being heard in the Judicial Center at Rikers’ Island. Incarcerated parolees join these proceedings via a Web-X system. Preliminary hearings have been taking place since April 9, 2020; final hearings since April 13, 2020. The State disputes that it is acting with deliberate indifference as well, because they are doing their job and satisfying due process by hearing applications of detainees being lawfully held on documents alleging specific violations of the conditions of parole. The State also argues that petitioner’s papers are not specific enough to allege that his own due process rights have been violated by either the City or the State. Thus, the Court agrees that even if the release remedy was one recognized by appellate authority for this type of legal application, petitioner has not met his burden of establishing that his due process rights have been violated due to any form of deliberate indifference. Accordingly, the writ is denied on the merits. Finally, this Court recognizes that several judges have released detainees based on finding, or not finding, a due process violation by weighing that inmate’s enhanced risk of developing a COVID-19 related illness against various valid state interests, including the seriousness of the detainee’s risk of flight. See People ex. Rel. Stoughton v. Brann, New York County Supreme Court Index No. 451078/2020, April 6, 2020 (Dwyer, J) (ordering the release via habeas corpus of 18 of 32 inmates in a joint writ based on COVID-19 risks). This Court has acknowledged that this approach may come to be recognized as correct by appellate courts ruling on denial of these writs, mainly because of the immediacy of the harm to certain detainees and the unprecedented nature of the pandemic. This Court believes that this approach takes law-based due process analysis on a dangerous path that ends up in unpredictable discretionary decision making. Judges are lawyers, not doctors. We can accept and rely on the expertise of medical professionals who tell us that certain individuals present a heightened risk of contracting the COVID-19 virus. But even the numbers of people at risk due certain criteria is unsettled. During his April 15, 2020 World News Tonight program, David Muir aired his just completed interview with Dr. Anthony Fauci, who many call the Nation’s physician. Dr. Fauci acknowledged that “we don’t know everything about this virus.” www.abcnews.go/health/Coronavirus. Nonetheless, this Court accepts the CHS conclusion that petitioner is a member of an accepted highest risk group for COVID-19 complications. He is 54 years old. He does have diagnosed cardiovascular disease. Accordingly, this Court will now weigh that risk against the risk of the petitioner’s returning to court to face his pending criminal charges, as well as his risk of returning to custody to face a parole hearing. See People ex.rel. Ramirez v. Brann, Bronx County Index No. 260155/2020 (Boyle, J.) (finding risk of flight outweighed risk of health to incarnated petitioner with coronary artery disease during COVID-19 pandemic). Although petitioner is only held in on “dollar bail” on the pending New York County felonies, a ruling in favor of petitioner would result in his release on not just one, but three serious matters. ADA Devin Barrett represents she argued that petitioner should be placed on supervised release at his arraignment on the second burglary case. The arraignment judge had no discretion to order anything but “dollar bail” under the January 2020 bail statutes, since that judge could not order petitioner’s release at all due to the parole warrant. Contrary to petitioner’s argument, this mandatory ruling was not a finding by the arraignment judge that “petitioner will appear for his calendared court appearances and is not a flight risk.” Petitioner’s criminal history report provides data-driven information underscoring his exceptionally serious risk of flight. According to just the snapshot provided by the summary of information in that report, petitioner has been convicted nineteen times. Five of those convictions were for felonies, and three of those felonies were for violent crimes. Bench warrants have been issued to secure petitioner’s return to court on six separate occasions. Perhaps most pertinent to the risk of flight assessment to this parolee, he already had three documented parole revocations prior to the issuance of the current parole warrant. The documentation provided by the OAG relating to petitioner’s past parole violations and the underlying case dramatically confirm the immediacy of the flight risk. First, petitioner is on lifetime parole. He was adjudicated a mandatory persistent violent felony offender when he was sentenced to serve 15 years in prison followed by a lifetime of supervision for his conviction of possession of a loaded and operable gun on May 24, 1995 in New York County Supreme Court. The parole documents note that petitioner was convicted of Bail Jumping in connection with the gun arrest indictment. The OAG documentation states that at the time of the arrest for the gun charge, petitioner was also in possession of a stolen car. The document notes: “Records indicate that [petitioner] posted bail and fled the state, resulting in a bail jumping conviction.” Even though petitioner was sentenced in 1995, he was not initially released to parole supervision on this matter until May 19,2017. Since that initial release date, petitioner’s parole status has been revoked on three prior occasions; each time he was restored to parole supervision. He was last released to parole supervision on August 19, 2019. Less than four months later, on December 15, 2019, he was once again declared delinquent. On January 21, 2020, he became a parole absconder, and a warrant was issued for his arrest. There are fourteen separate allegations concerning recent violations of the terms of petitioner’s release. Three of them allege serious curfew violations, alleging that petitioner was not at his approved Brooklyn residence between 5:00 and 6:00 a.m. The seriousness of the curfew violations is shown by the allegations that the felony complaints in the two burglary cases indicate that he was breaking into commercial locations in upper Manhattan, once on January 9, 2020 at 3:45 a.m., and then at 2:31 a.m. on January 23, 2020.The second charged burglary is thus also alleged to have occurred two days after parole declared petitioner an absconder and issued its warrant for his arrest. Petitioner is alleged to have failed to notify his parole officer that he had moved out of his approved Brooklyn residence. During his arrest on January 9, 2020 for a commercial burglary at 331 East 109th Street, petitioner is alleged to have broken the body-worn camera of one of the police officers, footage that would have obviously confirmed that petitioner was out of Brooklyn and in Manhattan during his curfew hours. He was in possession of a crack pipe and two vials of crack cocaine. After he was arraigned, and released, on that matter, he failed to ever again report to his parole officer. He also failed to appear for his scheduled court appearance for his burglary case, and a warrant for his arrest was ordered on that matter on February 10, 2020. That warrant was not vacated for more than a month, and then only because he was returned involuntarily to court to be arraigned on his second commercial burglary charge. On that date, he was committed to the City’s custody on the parole warrant, and two securing orders setting “dollar bail.” The record before the Court does not merely demonstrate that petitioner is a flight risk; he is a flight fact. The Court finds it to be extremely unlikely that this lifetime parolee would return to Court to face two additional felony charges which would carry mandatory prison sentences, and that he would return on his own to face the charges at the parole revocation hearing, if he were released to the community. Accordingly, the Court finds that petitioner’s risk of flight outweighs his risk of developing serious COVID-19 complications. For this final reason, the Court also denies the application that he be released from custody via this writ. This constitutes the Decision and Order of the Court. Dated: April 16, 2020
