ILONA COLEMAN JAVIER ALVAREZ RONALD HARRISON KEN PARAISON JESSICA PITTS CLAUDIUS PURIFOY v. CYTHIA BRANN

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Supreme Court, Bronx County, New York.

People of the State of New York ex rel. ILONA COLEMAN, on behalf of JAVIER ALVAREZ, RONALD HARRISON, KEN PARAISON, JESSICA PITTS, and CLAUDIUS PURIFOY, , Petitioners, v. CYTHIA BRANN, Commissioner, New York City Department of Corrections, et al., , Respondents.

Index No. 260252/20

Decided: April 21, 2020

THE BRONX DEFENDERS (by Daniel Hamburg, Ilona Coleman, Annette Lee, Archana Prakash, Pezhmon Zaiim, Emily Prokesch, Deborah Lolai, and Ruth Hamilton, Esqs.) Attorney for Petitioners OFFICE OF THE DISTRICT ATTORNEY, BRONX CO. (by Tim Lynch, Jie Xiang, Masateru Marabashi, Johanna Lerner, Simon Folkard, Robert McIver, Esqs.) Attorney for the People OFFICE OF THE ATTORNEY GENERAL (by Jeb Harben, Esq.) Attorney for the New York State Department of Corrections Community Supervision

The five petitioners in this proceeding are detainees at correctional facilities on Rikers Island who have pleaded guilty in their criminal cases but have not yet been sentenced. They claim that the conditions of their confinement, which include the inability to practice social distancing, place them at unreasonably high risk of infection with SARS-CoV-2, the virus that causes COVID-19. Further, petitioners contend that they suffer from health problems that would leave them vulnerable to severe or deadly illness if they contracted COVID-19. As a result, petitioners claim, their confinement during the ongoing pandemic violates their due process rights and constitutes "cruel and unusual punishment[ ]" under the United States and New York Constitutions. For a remedy, petitioners seek writs of habeas corpus directing respondent New York City Department of Corrections (DOC) to release them temporarily from custody until their sentencing.

In connection with this application, this Court reviewed the following documents:

Writ of Habeas Corpus dated 4/10/2020

Verified Petition of Ilona Coleman, Esq. dated 4/9/2020, with Exhibits A-K

Affrmation in Support of Annette Lee, Esq. dated 4/13/2020, with attachments

Outline of Petitioners' oral argument prepared by Daniel Hamburg, Esq.

Affrmation in Opposition of Robert C. McIver, Esq. dated 4/13/2020

Memorandum of Law in Opposition with Exhibits 1-7

Affrmation in Opposition of Carolyn E. Kruk, Esq. dated 4/13/2020, with Exhibits A-J

Transcript of Oral Argument (April 14, 2020)

ALLEGATIONS

Petitioners' factual allegations about the deficient conditions on Rikers Island will only be summarized here. Petitioners do not question the good faith of DOC or its officials, but claim that the Department is incapable of adequately protecting them from COVID-19 infection. According to petitioners, (1) DOC's social distancing policies fall short of the recommendations of the Center for Disease Control (CDC). In fact, petitioners allege, DOC cannot implement adequate social distancing because of the fundamental nature of the jail environment. (2) DOC is separating inmates with confirmed cases of COVID-19 and those with suspected cases from the general population and housing them together in dormitories. According to petitioners, this practice conflicts with CDC guidelines and facilitates the spread of COVID-19. (3) DOC has no plan to protect medically vulnerable inmates, who are at heightened risk if they become infected, by segregating them from the general population. (4) Petitioners allege that DOC's cleaning and disinfecting protocols are inadequate, and not enough cleaning supplies are made available. (5) DOC allegedly has failed to train its correction officers about how to wear protective gear, how to identify COVID-19 cases, and what to do in the event of an exposure or infection. (6) Finally, the policies that DOC has in place to address the pandemic allegedly fall short of the CDC guidelines for correctional facilities, and in any event are not being rigorously followed.

HABEAS CORPUS RELIEF

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.

THE PETITIONERS

With respondents' consent, petitioner Jessica Pitts has been released from custody, and accordingly her applications for a writ is moot. The following summary provides the circumstances of the other four petitioners' detention at Rikers Island, their prior criminal histories, and their claimed underlying medical conditions.

Javier Alvarez — Mr. Alvarez is in DOC custody at the Anna M. Kross Center. On January16, 2019, the Grand Jury of Bronx County indicted him for Robbery in the First Degree and related charges in connection with two separate incidents on December 20, 2018. In the first incident, petitioner allegedly displayed a razor blade to and robbed the complainant in an elevator. He also struck the complainant with a sharp object, causing a one-inch laceration on her neck. In the second incident, he and an accomplice robbed a 68-year-old woman.

On December 6, 2019, Mr. Alvarez pleaded guilty before the Supreme Court, Bronx County, to Attempted Robbery in the Second Degree in satisfaction of the indictment. After his plea, the Court remanded him to DOC custody until his sentencing, which is scheduled for May 11, 2020. His promised sentence is a determinate term of 51/212 years, followed by five years of post-release supervision.

Mr. Alvarez's guilty plea constitutes his fifth felony conviction and third violent felony conviction. The first two violent felony convictions date from 2009. Moreover, on February 19, 2020, he pleaded guilty to Attempted Grand Larceny in the Second Degree before the Supreme Court, Nassau County, with a promised sentence of an indeterminate term of two to five years' imprisonment, running concurrently with his sentence in Supreme Court, Bronx County.

Claiming that Mr. Alvarez's confinement at Rikers Island gravely endangers his health, his counsel submits a letter dated March 20, 2020 from Dr. Rachael Bedard, Director of Geriatrics and Complex Care Services of the NYC Health + Hospital's Division of Correctional Health Services (CHS). Dr. Bedard states the following:

"To Whom It May Concern,

Mr. JAVIER ALVAREZ . . . is currently under the care of [CHS]. Mr. JAVIER ALVAREZ is currently housed . . . on Rikers Island.

The City of New York is taking extreme precautions to prevent transmission of the coronavirus strain COVID 19 to individuals at high risk of severe illness, including the elderly and patients with serious or chronic disease. Mr. JAVIER ALVAREZ is in the highest risk group due to his health status (his diagnoses include chronic hepatitis C — an underlying condition which causes inflammation and scarring of the liver; people with long-standing untreated hepatitis are at higher risk of liver inflammation, organ failure, and serious disease in the context of critical illness). While CHS is employing all available strategies to contain risks of exposure, jails and prisons are particularly high-risk settings for viral spread. As a public health measure, we are requesting that courts reconsider the necessity of pretrial detention for high risk patients until the current state of emergency is resolved."

In an affirmation, Mr. Alvarez's attorney of record states that he also suffers from asthma and was born with a hole in his heart which causes a heart murmur. Counsel attaches a CHS patient summary which indicates that Mr. Alvarez is 34 years old and suffers from hepatitis C and asthma, but does not mention a heart murmur.

Ronald Harrison — Mr. Harrison is in DOC custody at the Otis Bantum Correctional Center. In September 2018, the Grand Jury of Bronx County indicted Mr. Harrison for Murder in the Second Degree and related charges in connection with an incident in August 2018, when he caused the victim's death by stabbing him in the neck.

On March 4, 2020, Mr. Harrison pleaded guilty before the Supreme Court, Bronx County, to Manslaughter in the First Degree in satisfaction of the indictment. After his plea, he was remanded to DOC custody until sentencing, scheduled for May 13, 2020. His promised sentence is 19 years imprisonment followed by five years of post-release supervision.

Before his manslaughter conviction, Mr. Harrison had been convicted of four felonies, including two prior violent felonies, and three misdemeanors.

Mr. Harrison is 42 years old. With respect to his medical condition, his counsel states that "[m]edical records show that Mr. Harrison suffers from HV, high blood pressure, and asthma," and that he has "a partial bullet lodged in his chest that could compromise both heart and lung functioning." Counsel submits another letter from Dr. Bedard dated March 20, 2020, whose contents are largely identical to her letter about Rafael Alvarez. However, in the letter for Mr. Harrison, Dr. Bedard states that he "is in the highest risk group due to his health status" but does not identify any medical condition that places him in that group.

Counsel also submits medical records, generated in November 2019, which relate to Mr. Harrison's emergency room treatment in August 2018 at the Montefiore Medical Center. Those records indicate that Mr. Harrison had been previously diagnosed with HIV infection and immune deficiency disorder, but make no mention of high blood pressure, asthma, or a lodged bullet.

Ken Paraison — Mr. Paraison is in DOC custody at the Anna M. Kross Center. In 2019, the Grand Jury of Bronx County indicted him for two counts of Robbery in the Second Degree and related charges in connection with incidents on February 15 and 16, 2019. In each incident, petitioner displayed what appeared to be a firearm in the course of robbing a clothing store.

On January 13, 2020, Mr. Paraison pleaded guilty before the Supreme Court, Bronx County, to two counts of Robbery in the Third Degree in satisfaction of the indictment. After his plea, the Court then remanded him to DOC custody until sentencing, scheduled for May 14, 2020. His promised sentence is two indeterminate prison terms of two to four years, to run concurrently. His previous criminal history includes his January 2017 conviction of Attempted Robbery in the Second Degree.

Mr. Paraison is 23 years old. Addressing his health, counsel states that he "is suffering

from ongoing asthma, among other medical conditions." Counsel submits a letter from Dr. Bedard dated March 20, 2020; as in her letter about Mr. Harrison, Dr. Bedard states that Mr. Paraison "is in the highest risk group due to his health status" but does not specify any medical conditions. Counsel did not submit any medical records concerning Mr. Paraison.

Claudius Purifoy (a/k/a Diamond Purifoy) — In March 2018, the Grand Jury of Bronx County indicted Ms. Purifoy for Murder in the Second Degree and related charges in connection with an incident on March 10, 2018, when she caused her partner's death by stabbing him in the neck and chest.

On October 23, 2019, Ms. Purifoy pleaded guilty before the Supreme Court, Bronx County, to Manslaughter in the First Degree in satisfaction of the indictment. After her plea, she was remanded to DOC custody until sentencing, scheduled for April 22, 2020. Her promised sentence is eight years' imprisonment followed by five years of post-release supervision.

Before her manslaughter conviction, Ms. Purifoy was convicted of the following offenses: in March 2007, Sodomy in the Second Degree in Alabama, for engaging in sexual conduct with a 12-year-old; in January 2013, Attempted Criminal Possession of a Weapon in the Fourth Degree in Bronx County, after she was arrested for menacing her roommate with a knife; and in April 2013, Attempted Criminal Sale of a Controlled Substance in the Fifth Degree in Bronx County. During the pendency of the last two cases, the Court issued three bench warrants for her arrest after she failed to make required appearances.

Dr. Ruth Hai, another CHS physician, submits a letter dated March 22, 2020 about Ms. Purifoy's health. In relevant part, Dr. Hai states the following:

"I am writing to you . . . to identify that [Ms. Purifoy], whom [DOC] has identified as LGBTQ+, is part of a population currently facing elevated risk of illness and death from COVID-19. LGBTQ+ defendants are at higher risk of being in an immunosuppressive state due to . . . HIV. . . .

LGBTQ+ prisoners are at an increased risk of injury during periods of heightened tension, both from other prisoners and DOC personnel. Because LGBTQ+ defendants are in more frequent contact with medical staff (for injectable hormone therapy) , the likelihood of their being exposed to COVID-19 is much higher than for other prisoners."

Counsel submit medical records which indicate that Ms. Purifoy has a medical history of HIV infection. She is 37 years old.

APPLICABLE LEGAL STANDARDS

The initial question is what legal analysis applies to petitioners' claims that the circumstances of their confinement violate (1) their constitutional due process rights and (2) the constitutional prohibition of cruel and unusual punishment. As discussed below, to determine the correct analysis, it must be determined whether, as petitioners argue, they should be considered as detainees or, as respondents claim, convicts. Before this Court addresses the somewhat unsettled issue as to whether post-plea, pre-sentencing individuals should be deemed detainees or convicts, it will set forth the standards to be applied in both cases.

Due Process — Turning first to the due process claims, if petitioners are detainees, then the legal standard set forth in Cooper v Morin (49 NY2d 69 [1979] , reargument denied 49 NY2d 801 [1980]) applies. In Cooper, the Court of Appeals held that, to determine a pretrial detainee's state claim that conditions at his or her jail violate due process, the State Constitution requires "a balancing of the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement" (49 NY2d at 79). For due process claims brought by pretrial detainees seeking their release from Rikers Island because conditions there unduly expose them to the COVID-19 virus and endanger them, the courts of this State have framed the analysis as a balancing "between the harm to each petitioner's health caused by their continued detention at Rikers Island and the government's interest in assuring their presence in court as required for the disposition of their cases" (People ex rel. Anderson v Brann, Index no. 260197/20, 6 [Sup Ct, Bronx County, Apr. 9, 2020] [Marcus, J.]; see also People ex rel. Torres v Brann, Index nos. 260168/2020, 2368/2019, 5 [Sup Ct, Bronx County, Apr. 2, 2020] [Lieb, J.] ).

On the same date that this Court heard oral argument on the instant petition, it also entertained three petitions for writs brought by Rikers Island inmates who had been detained on parole warrants and were awaiting parole revocation hearings (People ex rel. Giovanniello, Index no. 260233/2020 [Sup Ct, Bronx County, Apr. 14, 20201 [Adler, J.]; People ex rel. Miller, Index no. 260251/2020 [Sup Ct, Bronx County, Apr. 14, 2020] [Adler, J.]; People ex rel. Allen, Index no. 260261/2020 [Sup Ct, Bronx County, Apr. 14, 2020] [Adler, J.] ). Applying the balancing analysis set forth in Cooper, this Court ordered the three petitioners' release.

The federal constitutional standard for analyzing pretrial detainees' due process claims is less stringent than the state standard. For federal due process claims, the test is whether the complained-of action — here, petitioners' continued detention during the pandemic — has a legitimate purpose other than punishment and is not excessive in relation to that purpose (Cooper, 49 NY2d at 79 [citing Bell v Wolfish, 441 US 520 (1979)] ). That standard is met here, since the State's interest is ensuring a pretrial detainee's presence in court is both legitimate and non-punitive.

If petitioners are deemed to be convicts, their claims that the conditions of their confinement are unconstitutional must be based on the prohibition of cruel and unusual punishment, and not violations of substantive due process. Whitnack v Douglas County (16 F 3d 954 [8th Cir 1994]) is a particularly apt illustration of the different status of pre-trial detainees and convicts. In Whitnack, the two plaintiffs had been confined together in a filthy cell in a Nebraska state jail. The cellmates brought an action under 42 USC § 1983, claiming that the conditions of their confinement violated their constitutional rights. At the time they were cellmates, one plaintiff had been convicted of a crime, and the other was a detainee awaiting trial on pending criminal charges. The Court in Whitnack held that the detainee's claim was governed by the Fourteenth Amendment's Due Process Clause, but the convict's claim was governed by the prohibition of cruel and unusual punishment under the Eighth Amendment (16 F 3d at 957).

"Deliberate Indifference" analysis — For both pre-trial detainees and convicts, "[a] claim arising out of inadequate medical care requires a demonstration of 'deliberate indifference to [a prisoner's] serious medical needs" ' (Hill v Curcione, 657 F 3d 116, 122 [2d Cir 2011] [quoting Estelle v Gamble, 429 US 97, 104 [1976]). To make out a claim of deliberate indifference, it must be shown that the alleged inadequacy is "sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists" (Hathaway v Coughlin, 99 F 3d 550, 553 [2d Cir 1996] [internal quotation marks omitted] ).

The claimant must also show that the party charged with deliberate indifference acted with a "sufficiently culpable state of mind" (see Wilson v Seiter, 501 US 294, 298 [1991]). To be sufficiently culpable, the party must have known about yet disregarded "an excessive risk to inmate health or safety" (Farmer v Brennan, 511 US 825, 837 [1994]).

Petitioners' status — This Court will now address whether (1) the legal standards for pretrial detainees or (2) those for convicted criminals apply to inmates who have been convicted of crimes by pleading guilty but have not been sentenced (see CPL 1.20 [13] [" 'Conviction' means the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument"] [emphasis supplied] ). To date, the Supreme Court, the Second Circuit, and the Court of Appeals have not squarely addressed this issue, and both petitioners and respondents find support for their positions in the case law. After reviewing the relevant authority, however, this Court agrees with the prevalent view that persons such as petitioners, who at the time of the alleged constitutional violations were awaiting sentencing after their conviction, are no longer pretrial detainees (see., e.g., Darnell v Piniero, 849 F 3d 17, 29 [2d Cir 2017]; Tilmon v Prator, 268 F 3d 521, 523 [5 th Cir 2004] [holding that "a prisoner who has been convicted but has not yet been sentenced has the same status as a sentenced prisoner"]; Resnick v Hayes, 213 F 3d 443, 448 [9th Cir 2000]; Berry v City of Muskogee, Okl., 900 F 2d 1489, 1493 [10th Cir 20001 [holding that "[w]e see no reason to treat incarcerated persons whose guilt has been adjudicated formally but who await sentencing like pretrial detainees, who are detained primarily to ensure their presence at trial"]; Stewart v Schiro, 2015 WL 1854198 at *11 [ED NY Apr. 22, 2015; cf Bistrian v Levi, 696 F 3d 352 [3d Cir 2012]).

Accordingly, petitioners cannot challenge the conditions of their confinement on due process grounds, and the balancing test set forth in Cooper is inapplicable to their claims. Instead, petitioners are limited to reliance on the constitutional prohibition on cruel and unusual punishment, and in particular must demonstrate respondents' deliberate indifference to their health needs.

Based on the parties' submissions, this Court finds that petitioners failed to show that DOC has been deliberately indifferent to the health risk posed by the conditions on Rikers Island. Instead, respondents have shown that DOC has made substantial efforts to ameliorate that risk by containing the spread of COVID-19 on Rikers Island. In finding a lack of deliberate indifference, I join the large majority of courts that have recently examined the issue and reached the same conclusion (see People ex rel. Anderson v Brann, supra; People ex rel. Pichardo v Brann, Docket nos. CR-005432-20BX & CR-005433-20BX, at 7-8 [Sup Ct, Bronx County, Apr. 8, 2020] [Fabrizio, J.]; People ex rel. Melendez v Brann, Index no. 682/2019 [Sup Ct, Bronx County, Apr. 3, 2020] [Lieb, J.]; People ex rel. Napier v Brann, Index no. 133/2020 [Sup Ct, Bronx County, Apr. 3, 2020] [Lieb, J.]; People ex rel. Martinez v Brann, Index no. 260188/2020 [Sup Ct, Bronx County, Apr. 2, 2020] [Fabrizio, J.]; People ex rel. Torres v Brann, supra, at 3; cf. People ex rel. Hogan v Brann, 2020 WL 1679209 [Sup Ct, New York County, Apr. 6, 2020] [Dwyer, J.] ).

Accordingly, petitioners' claim that respondents violated the constitutional prohibition of cruel and unusual punishment fails and their application must be denied.

As an additional matter, the risk entailed by releasing petitioners from custody before their sentencing merits consideration. Counsel stresses that the release would be temporary, and argues that petitioners would be motivated to appear for sentencing to avoid the threat of receiving an even lengthier term. This position is unconvincing. Petitioners face definite, long prison sentences, and have waived their right to appeal. It is hard to imagine a higher risk group for flight than convicts at liberty who must shortly commence lengthy prison terms. Presumably, the risk of flight weighed heavily as a factor in the courts' decision to remand petitioners to DOC custody after they had entered pleas. It should also be noted that the amended statute governing bail or recognizance applications, which took effect on January 1, 2020, requires the court to make an individualized determination as to whether the applicant poses a flight risk (see CPL 510.30 [1] [e]). This Court believes that petitioners pose a high risk of flight.

Finally, this Court rejects counsel's position that the State's only interest is petitioners' appearance for sentencing. The State has an interest in ensuring that petitioners receive their bargained-for penalty for their illegal conduct.

Therefore, and for the reasons set forth above, it is

ORDERED AND ADJUDGED that petitioners' application for writs of habeas corpus is denied and the petition is dismissed. The foregoing constitutes the order and judgment of the

Court.

Dated: Bronx, New York

April 21, 2020

HON. LESTER B. ADLER

SUPREME COURT JUSTICE

Lester B. Adler, J.