DECISION AND JUDGMENT In 2008, Mark Wicks was charged in a three-count indictment with burglary in the second degree, sexual abuse in the first degree and petit larceny. Wicks was thereafter convicted upon jury verdict of the latter two counts and, on January 28, 2009, was sentenced by the County Court of Warren County (Hall, J.) as a persistent felony offender to 22 years to life for sexual abuse in the first degree, along with a concurrent one-year sentence for petit larceny. Wicks is now 55 years of age and an inmate at the Clinton Correctional Facility (hereinafter CCF). He suffers from “high blood pressure [and] heart health issues,” having had a heart attack in 2015. He also had “hip replacement surgery in December 2019[, and] now must use a cane to assist [him] in walking.” Presently before the Court is petitioner’s application on Wicks’ behalf for a writ of habeas corpus directing Wicks’ immediate release from prison “on the grounds that continuing to hold him on the sentence imposed constitutes deliberate indifference to the risk of serious medical harm in violation of the Eighth Amendment of the U.S. Constitution and Article 1, Section 5 of the New York State Constitution,” both of which prohibit cruel and unusual punishment. According to petitioner, Wicks’ age and underlying medical conditions make him “particularly vulnerable to serious illness or death if infected by COVID-19.” Respondents have now served a return in opposition to the requested relief and oral argument has been heard.1 Petitioner must make two showings to succeed on his claim, the first being that Wicks “is objectively ‘incarcerated under conditions posing a substantial risk of serious harm’” (People ex rel. Carroll v. Keyser, 184 AD3d 189, ___, 2020 NY Slip Op 03169, *2 [2020], quoting Farmer v. Brennan, 511 US 825, 834 [1994]; see Helling v. McKinney, 509 US 25, 35 [1993]; Matter of Wooley v. New York State Dept. of Correctional Servs., 15 NY3d 275, 282 [2010]). “The second is that prison officials exhibit deliberate indifference, meaning that, subjectively, their actions reflect a state of mind, akin to criminal recklessness, in which they consciously disregard the risk of harm” (People ex rel. Carroll v. Keyser, 2020 NY Slip Op 03169 at *2; see Farmer v. Brennan, 511 US at 839-840; Walker v. Schult, 717 F 3d 119, 125 [2d Cir 2013]; Salahuddin v. Goord, 467 F.3d 263, 280 [2d Cir 2006]; Matter of Wooley v. New York State Dept. of Correctional Servs., 15 NY3d at 282). Here, the Court finds that petitioner has failed to make either of the requisite showings. At the outset, petitioner has failed to submit any evidence that Wicks is objectively incarcerated under conditions posing a substantial risk of serious harm. Petitioner has submitted an affidavit from Wicks describing his medical conditions and the living conditions at CCF, as well as a copy of the operative report relative to Wicks’ hip replacement surgery, a copy of the discharge summary following Wicks’ heart attack and a copy of a “Health Provider Order Sheet” from CCF listing the medications Wicks was prescribed as of December 15, 2019, which include Lisinopril, Metoprolol, Atorvastatin, Tylenol and Aspirin. Notably missing, however, is a statement from a medical professional that Wicks’ medical conditions place him at extreme risk of a serious and possible fatal outcome if he is infected with COVID-19 (compare People ex rel. Carroll v. Keyser, 2020 NY Slip Op 03169 at *2). Further, while petitioner argues that, “[a]s of June 25, 2020, [respondent] Department of Corrections and Community Supervision ([hereinafter] DOCCS) reported…1887…cases of COVID-19 in New York State Prisons and among parolees (including DOCCS staff),” respondents have submitted proof that “as of August 1, 2020,…there has been only 1 inmate at [CCF] that tested positive for COVID-19.” Petitioner has likewise failed to submit any evidence that prison officials at CCF have exhibited deliberate indifference to Wicks, who describes the living conditions at CCF as follows: “Inmates…are provided with only one mask to use per week and no means to clean their masks, are not provided hand sanitizer, and are not provided any other type of personal protective equipment. “Inmates are in close proximity to one another and cannot practice safe social distancing as experts suggest people should to avoid contracting and spreading the virus. “Inmates are required to eat meals while sitting within very close proximity of one another. “All inmates share communal showers, phones and common areas with little to no ability to disinfect these areas to protect from spreading the virus.” While the conditions described are not ideal, it is nonetheless clear that respondents have taken steps to prevent the spread of COVID-19 among inmates at CCF. Indeed, respondents have further outlined these steps in their return, submitting the affidavit of deputy counsel for DOCCS who states that “[b]oth staff and incarcerated individuals have received information on preventative measures to stay healthy, including the top recommendation by the [Centers for Disease Control and Prevention (hereinafter CDC)] and State Department of Health — the regular use of soap and water, which is readily available throughout [the] correctional facilities. DOCCS has also implemented several other measures, such as, but not limited to: Temporarily suspending all intake of incarcerated individuals from county facilities; Internal transfers of incarcerated individuals has been stopped except for medical, disciplinary and other exigent circumstances to ensure the continued health and safety of DOCCS staff and incarcerated population; Temporarily suspending visitations; Requiring non-security and many other civilian staff to remain home until directed to return; Implementing a health/travel questionnaire for staff entering facilities; Regularly distributing guidance from the Department of Health to all staff and the inmate population about the important steps to take to combat the virus; Displaying posters with information on COVID-19 and safety tips throughout DOCCS facilities; Regularly showing a video to the incarcerated population and staff at the facilities on proper handwashing entitled ‘Put your hands together’; [and] Issued enhanced cleaning/sanitizing measures, consistent with CDC guidelines, for office surfaces, devices and disinfecting procedures.” Deputy Counsel further states that “DOCCS has medical staff specially trained in infection control employed in facilities across the state[,] has negative air flow isolation rooms, and Regional Medical Units.” Under the circumstances it cannot be said that, subjectively, respondents’ actions reflect a state of mind, akin to criminal recklessness, in which the risk posed to Wicks by COVID-19 was consciously disregarded (see People ex rel. Carroll v. Keyser, 2020 NY Slip Op 03169 at *2). Briefly, the Court notes that the law is unsettled with respect to whether habeas corpus lies to challenge the conditions of confinement for individuals in Wicks’ position. That being said, the Court need not reach this question where, as here, petitioner has failed to reach the ultimate burden of demonstrating that the inmate’s detention is illegal (see CPLR 7002[a]; 7010[a]; People ex rel. Carroll v. Keyser, 2020 NY Slip Op 03169 at *2; People ex rel. Ferro v. Brann, 183 AD3d 758, 758 [2020]; People ex rel. Romano v. Thayer, 229 App Div. 687, 691 [1930]). Therefore, having considered the Petition with Exhibits attached thereto, verified July 13, 2020,2 Return with Exhibits attached thereto, dated August 1, 2020; and Affirmation of Charles J. Quackenbush, Esq., dated July 24, 2020, and oral argument having been heard on August 6, 2020, with no appearance on behalf of petitioner and Michael G. McCartin, Esq. appearing on behalf of respondents, it is hereby ORDERED AND ADJUDGED that the relief requested is denied in its entirety and the petition dismissed. The original of this Decision and Judgment has been filed by the Court together with the submissions enumerated above. Counsel for respondents is hereby directed to obtain a filed copy of the Decision and Judgment for service with notice of entry in accordance with CPLR 5513. Dated: August 12, 2020
