DECISION AND ORDER Can a defendant be required to get vaccinated for Covid as a condition of a conditional discharge? During a court appearance in this case on September 30, 2021, the Court expressed the view that such a condition is permissible and included it as part of the defendant’s conditional discharge sentence. The Court writes this opinion to explain its reasoning in more detail. PROCEDURAL HISTORY The criminal court complaint alleges that on or about April 22, 2020, while Fire Department emergency medical services professional Laura Karol was treating the defendant, he struck her with a closed fist, causing substantial pain, redness, bruising, soreness and swelling to her left bicep. The defendant was charged with, among other charges, assault on an emergency medical services professional pursuant to PL §120.08, a Class C felony. He was arraigned in Bronx County Criminal Court on April 23, 2020 and held on $5,000 bail. After a bail review, new bail conditions were set: $2,500 partially secured bond, $1,000 fully secured bond, $500 cash or $500 credit card. The defendant subsequently posted bail on May 8, 2020 and was released. The case was administratively adjourned several times during the Covid epidemic. During a court appearance on January 12, 2021, the People offered a more lenient plea to the charge of Assault in the Second Degree, PL §120.05(3), a Class D felony, with a sentence of a conditional discharge. The defendant rejected this offer. On May 12, 2021, the People sweetened the offer again, giving the defendant the opportunity to plead to the misdemeanor charge of Assault in the Third Degree, PL §120.00, with a conditional discharge. The defendant was not present in court to consider the offer. After he missed two more court appearances, a bench warrant was issued for his arrest. On August 10, 2021, when the defendant was returned on the warrant, he was again offered the misdemeanor assault plea, which he declined. Three weeks later, on September 30, 2021, the People reduced their offer yet again, this time giving the defendant the opportunity to plead to the non-criminal violation of Disorderly Conduct, PL §240.20, with a Conditional Discharge.1 The Court asked the People why the offer had changed from a felonious assault to a violation, and why the People believed the violation was an appropriate offer. They responded that “there was [sic] minimal injuries,” that “the defendant has a limited criminal history,” and that “the complaining witness was ok with this disposition” (tr at 4). The Court pointed out that the minimal injury and the defendant’s record were both known to the People when they were insisting on the felony plea (Id). The People’s only response was that the victim “became OK with this offer” (tr at 5). The Court asked the defendant whether he had been vaccinated for Covid, and he responded in the affirmative, although he did not have proof of the vaccine with him (tr at 5, 11). The Court expressed the view that the People’s offer was extraordinarily generous, given the nature of the conduct in question (assaulting an emergency medical worker trying to do her job), and that it would therefore accept the plea only if the defendant, as a condition of the conditional discharge, provided proof of his Covid vaccine. While acknowledging that the Court has broad discretion to impose rehabilitative conditions as part of a conditional discharge, defense counsel objected to the vaccine condition, arguing that it “should [not] be a condition on any plea in this courthouse or anywhere” because the defendant “should have the right to choose the vaccine or not” (tr at 6-7). The Court made clear that it was not requiring the defendant to be vaccinated, since he was free to decline the Court’s offer and proceed with the case (tr at 6). The Court further explained why it believed the vaccine condition to be rehabilitative, and therefore allowable (tr at 7). After consulting further with counsel, the defendant decided to plead guilty to the disorderly conduct violation, and was sentenced to a conditional discharge, a condition being that he present proof of Covid vaccination within three months (tr at 11-13). THE COVID PANDEMIC The United States is in the throes of the worst pandemic in a century. Over 700,000 people have died (Centers for Disease Control and Prevention, COVID Data Tracker, https://covid.cdc.gov/covid-data-tracker/#cases_casesperl00klast7days [last accessed Oct. 6, 2021]). New York State — and New York City in particular — bore the brunt of the pandemic in its earliest days. To date, over 56,000 New Yorkers have died of Covid; over 34,000 of them lived in New York City, and 6,723 of them were from the Bronx (Worldometer, New York, https://www.worldometers.info/coronavirus/usa/new-york/ [last accessed Oct. 6. 2021]). The Federal Drug Administration gave emergency approval to three vaccines it found to be both safe and highly effective in preventing serious injury and death from Covid, and gave final approval to one of those vaccines (Pfizer) on August 23, 2021 (Lisa Maragakis & Gabor Kelen, Johns Hopkins Medicine, Full FDA Approval of a COVID-19 Vaccine: What You Should Know, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/full-fda-approval-of-a-covid-19-vaccine-what-you-should-know). Nevertheless, large swaths of the population remain unvaccinated, for various reasons that are beyond the scope of this opinion. Here in the Bronx, 30 percent of adults over 18 are not fully vaccinated (Centers for Disease Control and Prevention, COVID-19 Integrated County View, Bronx County, New York, https://covid.cdc.gov/covid-data-tracker/#county-view
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