Petitioner Lenard Berrian, a sentenced prisoner released to parole supervision and now incarcerated following a finding that he violated a condition of his parole at a probable cause hearing, seeks release from Rikers’ Island because of issues related to the COVID-19 pandemic. The Commissioner of the Department of Corrections and Community Supervision (“DOCCS”) opposes only the part of the application alleging he violated petitioner’s constitutional right to a prompt final hearing. The Commissioner, by his attorney, the Office of the Attorney General (“OAG”) once again states that he takes no position about whether petitioner should be released by the Court due to allegations related to his medical condition and the COVID-19 pandemic itself. However, that second “no position” claim, voiced by the OAG in this case, is not correct; the Commissioner has a very strong position that petitioner is unsuitable to be released to the community. This decision address the writ as well as the serious concern that this Court has never before been informed that the Commissioner has taken such an administrative position, and the impact that this policy of not informing the Court of such a finding has on this Court’s rulings. This concern is magnified by the circumstances of this writ. Although petitioner presents this application as if it were being heard for the first time, in fact, he has sought the same relief from this Court on a prior occasion. Paragraph 21 of the Petition states: “Petitioners have made no prior application for the relief requested herein.” In fact, petitioner made a prior application for the same relief — release via habeas corpus — less than three weeks ago. Coincidentally, not only was this Judge assigned to hear that petition, as part of a 101 petitioner “mass writ,” but on April 13, 2020, this Court denied the application. The OAG alerted the Court, the City and Petitioner to this fact on Friday, April 24, 2020, a few hours after this second, or what the law calls “successive” writ, was assigned to this Court to be heard on Monday, April 27, 2020, as part of a random assignment to an Emergency Part. Petitioner’s failure to apprise the Court of every prior writ application for similar relief is a” fatal defect” in the Verified Petition. See People ex.rel, McAllister v. McMann, 25 AD2d 460, 461 (3rd Dept. 1966). Notice to the Court of all prior Article 70 applications, identical or even similar, is an indispensable requirement for all petitions under CPLR §7002(c)(6). Petitioner’s reason for not doing so, stated during the court appearance, was that this is the form used to prepare these writs. In seeking release, the petitioner substantively relies on the same COVID-19 information that he relied on in his prior application by listing the same predictions about prison conditions in Paragraphs 25 through 50 that have appeared, without significant updating, in these applications; this information includes news stories published and opinions expressed by individuals in March 2020, predicting an exponential spread of COVID-19 infection in the City jails. The legal argument shifts to a claim that petitioner has been deprived of his constitutional right to a timely parole revocation hearing. But heavily sprinkled throughout this legal argument are continued references about prejudice to him due to his medical condition by his continued confinement at Rikers’ Island. This was the same record petitioner made when this Court heard his first application for release as part of the 101-petitioner mass writ. People ex.rel Stoughton (Ruffin) v. Brann, No. 26011/2020, April 13, 2020, (Sup. Ct. Bronx County Fabrizio, J.). The Court denied that application, finding, inter alia, that the City had not acted with deliberate indifference to his medical needs. Once again, petitioner attacks the conditions of his confinement. The Court has no reason to find that the City is acting with deliberate indifference to petitioner, a ruling already made in Ruffin. Some exhibits submitted in support of this application are the same medical letters and records he provided in the previous proceeding. While petitioner provides this information in the same depth and with the same detail as in the first application, he inexplicably argues it is not relevant to his instant habeas corpus claim. This raises an obvious question — then why are they here? Irrelevant facts and arguments do not belong in any legal application; these submissions are not made in passing; they are inextricably intertwined with this application. Although the State argues this petition should be dismissed on procedural grounds as a successive writ [this legal doctrine is an important one; it prevents inconsistent results and alleviates the burden placed on courts who would be required to hear endless writs brought by the same detainee. See State ex.rel. Sassower v. Cunningham, 112 AD2d 119, 120 (1st Dept 1985)], the State has also provided information it did not provide the first time around relating to its position about whether petitioner should be considered for habeas corpus release. During the on the record hearing that lasted two days in connection with the Ruffin mass writ, OAG’s position was repeatedly emphasized: it was not taking a position but wanted to provide information for the Court to rule based on the facts. That is the same statement made by the OAG during hearings on every petition heard before this Court. However suddenly, in an affirmation filed at Court direction in this matter, the OAG references a memo dated April 7, 2020, from the Commissioner to DOCCS managers. In their affirmation in this second matter, OAG still states that it “defers a ruling to the Court” on whether petitioner should be released based on the COVID-19 allegations; this is just another way of saying OAG is not taking any position. What is startling about the responding affirmation is the revelation that DOCCS had “conducted an individualized review of [parolees held on] technical violations and cancelled the delinquency of any warrant where an individual had adequate housing available and the release of an individual would not present an undue risk to public safety” in response to the COVID-19 pandemic (Exhibit E to State’s return/response). Petitioner was part of that individualized review process. It took place before the first writ was filed. For an agency that insisted, and continues to insist, it is taking no position, the opposite is true; it has actually taken quite a strong one, and in particular when it comes to releasing a parolee detained for a parole violation to the community. This Court is disturbed by the fact that it was never apprised by the OAG that the Commissioner had reviewed the circumstances of this parole detainer and this petitioner’s record prior to the time this Court heard the first application for his release as part of that 101-petitioner mass writ. According to the OAG affirmation in this matter, “[p]etitioner has a criminal history that spans his entire adult life, with five felony and twenty misdemeanor arrests, including robbery, assault, and drug crimes” This is petitioner’s third stint on parole. Petitioner has a history of parole violations on this matter as well as while he was under parole supervision during previous sentences. One of the parole specifications in this matter is far from “technical.” The OAG affirmation alarmingly states, “[petitioner] has mental health issues and became violent in December 2019 when he walked into a program he had been prohibited from attending and attacked two women on the staff. He is perceived by DOCCS as being a danger to himself and others.” As noted, whenever it has appeared before this Court, which is now in excess of 130 parole writs, the OAG, as the lawyer for DOCCS, has consistently taken the position that it takes no position on releasing these parolees, even ones serving time assessments following a final adjudication. See People ex.rel.Harpaz (Mickens) v. Brann, No. 40001/2020, April 22, 2020 (Sup. Ct. Bronx County Fabrizio, J,). And yet, this Court now understands that the Commissioner has not only taken a position during an administrative review process to deny release of certain parolees, but he has specifically denied release based on legitimate administrative policy concerns about releasing convicted felons who are a danger to the public back into the community and who have no place to live. This Court demanded an affirmation from the OAG in this matter when it was assigned to hear this case; an affirmation or affidavit, called a “return,” the term used at common law, must be filed by a party sued under CPLR Article 70. CPLR §7008(1). The OAG has almost never filed a “return” to answer any of the prior “COVID” writs heard by this Court. This Court has also directed OAG to file one in response to any future Article 70 petition assigned to this Court. In its responsive papers in this matter, the OAG reveals the following information about the Commissioner’s administrative decision: 21. Based upon Petitioner’s history and current needs, he was not considered an appropriate candidate for revocation with restoration to parole supervision. See Violation of Parole Papers for Lenard Berrian, attached hereto as Exhibit B. 10 22. Accordingly, Petitioner would not have met the standards set forth in DOCCS’ review of inmates and parolees eligible for early release in response to the COVID-19 crisis, given his mental health issues and his violent conduct in attacking a social worker and another staff at a program he was no longer attending. See Declaration of Anthony J. Annucci, dated April 10, 2020,
