On or about April 29, 2020, Petitioner, Derek Bunch, an inmate held on a parole warrant at the Manhattan Detention Center (“MDC”), filed a verified petition for a writ of habeas corpus seeking immediate release on the ground that his continued detention constituted deliberate indifference to the risk of serious medical harm in violation of the prohibition against cruel and unusual punishment of the Eighth Amendment of the United States Constitution and Article I, Section 5 of the New York State Constitution. On May 4, 2020, a Skype conference was held to consider the Petitioner’s writ. Kathleen Rende, Esq., appearing on behalf of Petitioner, waived the Petitioner’s appearance. Neil Shevlin, Esq., appearing on behalf of the New York State Attorney General’s Office, opposed the writ. Rufus Urion, Esq, the Petitioner’s attorney before the Parole Board, also appeared. At the conclusion of the conference, the Court inquired whether the parties intended to submit exhibits in support of their respective positions. Shortly thereafter, the Court received submissions from Ms. Rende that included: the felony complaint related to Petitioner’s most recent arrest; Petitioner’s rap sheet; a letter from Dr. Rachael Bedard, Director of Geriatric & Complex Care Services for the Division of Correction Health Services (“CHS”); and a CHS printout detailing Petitioner’s medical status. The Attorney General’s Office provided, inter alia: a Department of Corrections and Community Services (“DOCCS”) area/bureau Analysis; a notice of violation; a violation of release report; and a certificate of release to parole supervision. The Court, upon consideration of counsels’ arguments, makes the following findings of fact and conclusions of law. Background and Procedural History As reported in Parole’s Violation of Release Report, dated April 17, 2020, the Petitioner’s criminal history dates back to 1996. He has sustained one felony and twelve misdemeanor convictions. The misdemeanor convictions are for various offenses, including, criminal contempt, criminal possession of stolen property, criminal possession of a controlled substance, menacing and petit larceny. On September 20, 2011, the Petitioner was sentenced to five years probation upon his plea in Queens County to attempted burglary in the second degree (PL §110/140.25 [2]). The facts underlying that conviction were summarized in the Parole Department’s release report as follows: On January 5, 2011…Mr. Bunch sold the c/v 80 y.o…. a small stereo and jacket for $40.00. On January 7, 2011, Bunch…returned and repeatedly began to knock on the c/v door, telling the c/v that he had something for her…When the c/v opened the door, Mr. Bunch pushed the door open and began pushing the c/w around. He then attempted to take the stereo. When the c/v attempted to stop him…he pushed her…causing the…c/v to strike her head on the floor. She sustained a laceration to the back of her head, bleeding, swelling and dizziness. Mr. Bunch then took the stereo, stating that when he returned he would cut the c/v’s throat, and making a cutting gesture to her… While on probation, the Petitioner sustained several misdemeanor convictions, including three in 2016 for criminal possession of stolen property in the fifth degree (PL §165.40). On November 17, 2016, as a result of these convictions, the Petitioner was resentenced on a violation of probation to three years jail and two years post-release supervision. On September 18, 2018, the Petitioner was released to parole with a maximum expiration date of September 18, 2020. On April 15, 2020, while on parole, the Petitioner was arrested and charged with burglary in the third degree (PL §140.20) and related charges. The felony complaint related to the new arrest provided, in pertinent part: Police Officer Matthew Schiff…says that on or about April 15, 2020 between 9:20 a.m. and 9:36 a.m., inside of 731 Beach Street 9 basement, County of Queens…Deponent is informed by Barbara McCarthy that she observed…Bunch enter the location and then observed him exit the location carrying one black and one orange toolbox… …defendant stated “Where I took the leak at, the boxes were there and I picked them up.” Burglary in the third degree is a non-qualifying offense for which bail, other than nominal bail if requested, may not be set. Here, nominal bail of one dollar was requested and set by the arraignment court due to a parole warrant having been lodged with Correction by the Department of Parole. The warrant, as stated in a violation of report filed by Parole, charges the Petitioner with failing to lead a law-abiding life, as evidenced by the new arrest, failing to advise his parole officer of a change of residence and providing a residential address that did not exist. As a result of the Parole warrant, Petitioner has remained in custody at MDC since his April 15, 2020 arrest. Petitioner, a fifty-six year old diabetic with purported additional health problems, claims that his age and underlying medical conditions render him “particularly vulnerable to serious illness of death if infected by COVID-19.” (See Verified Petition, 1). In support of this claim, Petitioner submitted a two page CHS printout form listing Petitioner’s multiple ailments and the medications he takes. In a letter from Dr. Bedard, she writes, in pertinent part: Mr. Derek Bunch is currently under the care of Correctional Health Services (“CHS”)…[and] is currently housed at MDC. The City of New York is taking extreme precautions to prevent transmission…to individuals at high risk of severe illness…including the elderly and patients with serious or chronic disease. Mr. Bunch is in the highest risk group due to his age (over 55) and an underlying medical condition. CHS is employing all available strategies to contain risk of exposure, jails and prisons are particularly high-risk settings for viral spread…we are requesting that courts reconsider the necessity of pretrial detention for high risk patients until the current state of emergency is resolved. Should the court consent to releasing Mr. Bunch, CHS would ensure…he has active health insurance, medications and followup medical care in the community upon release… Petitioner, in further support of his release, referred to statements made by other health professionals that older inmates, particularly those with serious medical issues, were at greater risk of contracting and succumbing to COVID-19. Petitioner also pointed out that, as of the filing of his petition, three inmates had died in City jails and that a significant number of other inmates, as well as correctional personnel, had already tested positive for the virus. During the course of the Skype conference, the Court inquired whether either party had reviewed a five page affidavit that the Court had received on similar writ application from Dr. Yang. Dr. Yang, a Vice President for CHS, explained in her affidavit that in early 2020, CHS realized the threat posed by the Coronavirus to the City’s jail population and that in preparation for the threat, CHS took “aggressive steps to reduce the likelihood of transmission and exposure that reflected the uniqueness” of the correctional environment. The affidavit then set out the extensive practices, procedures and protocols that had been developed and implemented to safeguard the prison population. Notwithstanding the aggressive steps outlined by Dr. Yang to meet the demands posed by COVID-19 to correctional facilities, she cautioned: Despite our best efforts to identify, test, and quarantine potentially infected people, the jail system remains a particularly challenging environment for managing the COVID-19 pandemic. Jails, by definition, are places of congregate living, with the unavoidable movement of people in and our around shared living spaces; and the introduction of potential sources of transmission as individuals are newly admitted to the jail. Transmission of infectious disease is a known risk in such settings. Although the Court was advised that Dr. Yang’s affidavit had indeed been sent with respect to the instant writ, the Court has not received it. Nonetheless, the Court takes judicial notice that such information has been considered in similar writ applications and, accordingly, in deciding this writ, the Court will consider the information contained in Dr. Yang’s affidavit. Discussion As a preliminary matter, this Court notes that there has been some disagreement among lower courts concerning whether the Petitioner is entitled to the relief sought by way of a writ of habeas corpus. In People ex rel. Moulter v. Brann, — Misc 3d &mdash, 2020 NY Slip Op 50436(U) (Sup Ct, Bronx County, 2020), the Court stated [I]t 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. In People v. Ex Rel. Coleman v. Brann, — Misc 3d &mdash, 2020 NY Slip Op 20090 (Sup Ct, Bronx County 2020), the Court held a writ of habeas corpus was an appropriate vehicle for considering release under the unique and time-sensitive nature of the relief sought. The Court reasoned: A threshold question is whether a writ of habeas corpus is available to petitioners. Respondents argue that a writ is inappropriate because the claims would not result in their immediate release (see CPLR 7002). According to respondents, petitioners should pursue alternative remedies in the form of an injunction, lawsuits under 42 USC §1983, or mandamus relief under CPLR Article 78. However, this Court agrees with petitioners that temporary release from confinement is the only meaningful remedy available to them. The primary way to prevent SARS-CoV-2 transmission is to practice social distancing, which, petitioners allege, is impossible at the Rikers Island facilities. Moreover, even if alternative remedies are available, habeas corpus relief is permissible where it is required by “practicality and necessity” (People ex rel. Keitt v. McMann, 18 NY2d 257, 262 [1966]). Here, the immediate risk of harm that infection allegedly poses to petitioners weighs in favor of habeas corpus relief. Accordingly, petitioners are entitled to maintain this proceeding. Similarly, in People ex Rel. Villasenor-Grant, Index No. 260227/2020, April 20, 2020 (Supreme Ct, Bronx County, Lieb, J.), the Court stated: Habeas corpus review is appropriate where a statutory or constitutional violation causes a petitioner’s incarceration (citations omitted). A writ of habeas corpus is available if the only meaningful remedy is immediate release. See People ex Rel. Brown v. Johnson, 9 NY2d 482, 484-485 (1961); see also People ex Rel. Kaplan v. Commissioner, 60 NY2d 648 (1983). And in Brown, the case cited in Villasenor-Grant, the Court of Appeals, concluded: An individual, once validly convicted and placed under the jurisdiction of the DOC is not to be divested of all rights and unalterably abandoned and forgotten by the remainder of society. If these situations were placed without the ambit of the writ’s protection, we would hereby encourage the unrestricted, arbitrary and unlawful treatment of prisoners…. This Court adopts the Brown, Coleman and Villasenor-Grant reasoning and finds that the remedy sought by the Petitioner — immediate release to avoid COVID infection — raises a compelling and time-sensitive interest that warrants habeas consideration. This Court also takes note that, as acknowledged by Petitioner, Petitioner’s release, if granted, would be without prejudice and, accordingly, release would not preclude the Department of Parole from renewing parole revocation proceedings upon abatement of the pandemic. Undeniably, the COVID-19 pandemic poses an unprecedented threat. On January 30, 2020, the World Health Organization (“WHO”) designated the outbreak as a public health emergency of international concern. The following day, Governor Cuomo, declared a state of emergency in New York and issued Executive Order 202 which provided, in pertinent part: I, Andrew M. Cuomo…find…a disaster is impending in New York State, for which the affected local governments are unable to respond adequately, and I do hereby declare a State disaster emergency for the entire State of New York. The Executive Order shall be in effect until September 7, 2020… In the two months that followed the Governor’s declaration, New York has proven to be at the epicenter of the pandemic. As of the drafting of this decision, there are nearly three hundred and fifty thousand confirmed cases of Coronavirus in New York and tens of thousands of New Yorkers have lost their lives to the virus. The virus has proven particularly virulent to the most vulnerable among us — the old, the frail and the immunity compromised. And congregate facilities, such as nursing homes, food processing plants and prisons, have been found to be virus breeding grounds. See People v. ex Rel. Stoughton v. Brann, — Misc 3d &mdash, 2020 NY Slip Op 20081 (Sup Ct, NY County). The Petitioner seeks release upon the ground that the Eighth Amendment prohibits the infliction of cruel and unusual punishment and that the Amendment imposes a duty on prison officials to “take reasonable measures to guarantee the safety of the inmates” and to provide them with adequate care. Petitioner further states that “a prison’s deliberate indifference to severe medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” In a recent case, Boykin v. Moreno, 2020 US Dist LEXIS 31580 (SDNY 2020), the Court analyzed an inmate’s deliberate indifference claim and explained the analytical framework to be applied on such a claim: Deliberate indifference claims under the Fourteenth Amendment are analyzed somewhat differently than the same claims under the Eighth Amendment, which applies to inmates who have been convicted and sentenced (citations omitted)… To be sure, the overarching framework remains the same. Under both…, to state a deliberate indifference claim an inmate must plausibly allege (1) ‘that he suffered a sufficiently serious constitutional deprivation,’ and (2) that the defendant ‘acted with deliberate indifference.’ The first element ‘is evaluated the same way under both the Eighth and Fourteenth Amendment.’ (citations omitted). This requirement is ‘objective’: The inmate must show that the ‘the alleged deprivation’ is ‘sufficiently serious.’ (citations omitted). In other words, the inmate must show that he was ‘incarcerated under conditions posing a substantial risk of serious harm.’ (citations omitted). The second element ‘applies differently to claims under the Eighth Amendment and the Fourteenth Amendment’ (citations omitted). While the Eighth Amendment imposes a subjective standard that the prison official ‘know[] of and disregard[] an excessive risk to inmate health or safety,’ (citation omitted) the Fourteenth Amendment…imposes an objective standard. That is, the prison official need only ‘recklessly fail[] to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.’ (citations omitted). As noted in Boykin, relief under a “deliberate indifference” standard, under both the Fourteenth and Eighth Amendment of the United States Constitution, requires the Petitioner to establish two elements. First, that the alleged deprivation was, objectively, “sufficiently serious.” And second, under an Eighth Amendment analysis, that “a prison official knew of and disregarded an excessive risk to the inmate’s health or safety.” In People ex rel. v. Moulter, — Misc 3d &mdash, 2020 NY Slip Op 50436(U)(Sup Ct, Bronx County 2020), the Court considered an inmate’s claim of “deliberate indifference.” In rejecting the claim, the Court stated: 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. (citations omitted). 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. This Court, like the Moulter Court, finds that the Petitioner has failed to establish that the respondents have acted with deliberate indifference. Indeed, Dr. Bedard’s letter referred to “extreme precautions to prevent transmission…to individuals at high risk of severe illness…” and those “extreme precautions” were detailed, at great length, in Dr. Yang’s affidavit. Accordingly, this Court finds that the Petitioner has failed to establish, under the Federal cruel and unusual standard, deliberate indifference on the part of either the City or State of New York. Petitioner also seeks release on the ground that continued detention violates the “cruel and unusual punishment” clause of Article I, Section V, of the New York State Constitution. In People v. Broadie, 37 NY2d 100, 111 (1975), cert denied 423 US 950 (1975), Chief Judge Breitel wrote: The cruel and unusual punishment clause is a flexible one with a long historical development. Although the intent of the Framers was to proscribe barbaric, torturous punishments, the clause has come to mean much more. Prohibited also are punishments grossly disproportionate to the crime. Notwithstanding the “flexible” nature of the “cruel and unusual punishment” clause, this Court is unaware of any decisional law in which this clause has ever been applied to a parolee’s detention based upon an alleged violation of the terms of his parole. Here, the Petitioner, after serving a three year prison term for a violent felony offense, was released to parole supervision. The Petitioner, in accordance with the terms of his release, was required to adhere to certain conditions. His alleged failure to do so justified the issuance of a warrant, arrest and subsequent detention; and that detention does not, even in the age of the Coronavirus, constitute a “barbaric, torturous punishment” or a punishment that is “grossly disproportionate” to the conduct alleged.Nonetheless, while the petition submitted to secure the Petitioner’s release referred only to the Federal and State “cruel and unusual” provisions under the United States and New York State Constitutions, during the conference the parties also addressed whether the Petitioner’s claim should be considered under a New York State due process standard. In Cooper v. Moran, 49 NY2d 69, 79 (1979), the Court of Appeals concluded that the Federal “depraved indifference” standard “fell short of adequate protection for our citizens…” and, in analyzing a claim by pre-trial detainees regarding contact visitation, stated: In our view what is required is a balancing of the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement. The analytical framework provided in Cooper is far more flexible than the Federal standard. It allows the Court to balance the countervailing interests of the individual against those of the State. And a number of New York courts, applying the balancing test of Cooper, have recently granted habeas relief to medically vulnerable individuals held on parole violations. See People ex Rel. Allen et al v. Brann, Index No. 260224-2020, April 17, 2020 (Sup Ct, Bronx County, Yearwood, J.); People ex Rel. Shefield et al v. Brann, Index No. 260227-2020, April 171, 2020 (Sup Ct, Bronx County, Lieb, J.). In Allen, the Petitioner, a sixty-five year old individual suffering from several ailments that placed him at a higher risk of significant illness or death if infected by the Coronavirus, was held on a parole hold after being arrested on an assault misdemeanor. Ultimately, the misdemeanor was resolved with an adjournment in contemplation of dismissal. Nonetheless, the defendant remained incarcerated on a technical parole violation for a failure to report following a preliminary hearing. The Court, noting the release, if granted, would be without prejudice, and upon weighing the Petitioner’s background and the nature of the violation against the State’s legitimate interest in enforcing violations of parole conditions, concluded that release was appropriate. Similarly, in Shefield, the Court considered writs filed by several petitioners who, like the Petitioner herein, were being held on a parole violation and who, due to either their age, medical condition or both, were particularly susceptible to life-threatening illness if infected. The Court, applying the balancing test enunciated in Cooper, released several of the petitioners and held the determination of one other until additional information concerning his medical condition was submitted. As previously noted, notwithstanding the substantial efforts by the State, City and their agencies to identify, test, isolate and safeguard those housed and working within New York’s correctional facilities, the “jail system remains a particularly challenging environment for managing the COVID-19 pandemic.” This Court, in recognition of the extraordinary threat posed by the Coronavirus, particularly to those with comorbidities residing in congregate settings such as correctional facilities, upon application of the Cooper balancing test, and upon consideration of the particularized factors in this case — factors that include the Petitioner’s age, medical condition, background, the limited time left on parole, the gravity of the alleged parole violation, the risk that his release poses to society and the fact that the Department of Parole may renew parole revocation proceedings upon abatement of the virus — grants, without prejudice, the Petitioner’s writ of habeas corpus. This constitutes the Order and Decision of the Court. Dated: May 12, 2020
