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Supreme Court, New York County, New York.

The PEOPLE of the State of New York, Plaintiff, v. Glenn WHITE, Defendant.


Decided: August 07, 2020

Counsel: David Gray, Esq., Assistant District Attorney Brian D. Foley

Defendant moves to vacate his sentence pursuant to CPL § 440.20(1) on the grounds that it now constitutes cruel and unusual punishment. He seeks to be re-sentenced under CPL § 440.20(4) to time served plus five years' post-release supervision. The People oppose the motion. For the reasons that follow, the motion is denied.


The court has had access to its computerized files, although not to its physical records and files, of these two indictments. The court has also reviewed the published decisions of the Appellate Division, First Department, affirming defendant's conviction on Indictment No. 8614-00,1 and of the United States District Court for the Southern District of New York denying his petition for a writ of habeas corpus,2 both of which supply facts relevant to this motion.

The charges in these two indictments arose out of a vicious attack on Timothy Moses in the early hours of November 14, 1999, inside and outside Club Monaco in New York County (2009 WL 3241292 ** 2-3). Moses, a welder and budding rap artist, was there to attend one birthday party, while defendant was there with Ralph Alicea and other members of Alicea's drug trafficking organization to attend a different party (id. * 2). At some point Moses got angry that Alicea was staring at him. Moses confronted him, which led to “ ‘aggressive’ words and gestures” between them; then “Alicea smashed Moses in the mouth with a champagne bottle, shattering his teeth” (id.). After Moses and Alicea's group were all expelled from the club, Alicea and several others, including defendant, approached Moses in the street. Defendant was carrying a knife (id.).

Moses thought defendant was holding a boxcutter or razor and was afraid he was going to cut him, so Moses punched defendant in the face (id. * 3). “Alicea gave the group orders to attack and the group kicked, punched, and stabbed Moses” (id.). Alicea also “yelled, ‘Kill the motherfucker,’ and [defendant], who was standing right next to Alicea, made a ‘jabbing’ or ‘socking’ motion towards Moses's body” (id.). A member of Alicea's organization who subsequently cooperated with the prosecution “saw Alicea hold Moses in a headlock and watched [defendant] drop the casing on his knife and stab Moses ․ ‘ripp[ing him] from his chest going down’ ” (id.). As Moses tried to run away, another person smacked him over the head with an aluminum bat, splitting open his forehead. Alicea's group fled (id.).3

Moses was left on the street, where a police officer found him “unresponsive, unconscious, and covered in blood” (id.). A paramedic who arrived at the scene testified that, in addition to having an injury to his forehead,

Moses was ․ bleeding profusely from ‘a gaping wound that looked like an incision that would have been done with like a razor ․ from the right shoulder over to the midline’ and a ‘stab wound to his lower right side ․ below the rib cage.’

(Id.) The treating emergency room doctor testified that, in addition to blunt head trauma and a laceration on the middle of his forehead, Moses had a laceration across his chest and a puncture wound “at the base of his rib cage” (id.). His bowel was punctured, which required doctors to check for air in his abdominal cavity. He received 30 stitches to close the wound on his forehead and 69 staples “to close the laceration that ran across his chest and over his shoulder” (id.).

Moses's recovery required three days in the hospital and several months of extensive outpatient treatment. (Citation omitted.) He had no vision in his right eye for two months, and needed physical therapy to regain motion in his arm, where his muscles were cut. (Citation omitted.) Additionally, he could not eat and talk normally for several months because his teeth were shattered and required a brace to keep them in place. (Citation omitted.)

(Id. * 4.)

Several members of Alicea's drug organization were indicted for drug conspiracy in January 2000 and cooperated with the police (id.). Defendant was also indicted for drug conspiracy (see Exh 2, attached).4 Based on information provided by the cooperators, defendant and Alicea were subsequently arrested and charged with Attempted Murder in the Second Degree, two counts of Assault in the First Degree and two counts of Assault in the Second Degree for the attack on Moses (2009 WL 3241292 *4; see also Exh 2). They were tried together on the Attempted Murder indictment before the Honorable Leslie Crocker Snyder in October 2001. On October 30, 2001, the jury found defendant guilty of Attempted Murder and two counts of Assault in the First Degree. On July 25, 2003, Justice Snyder sentenced him to concurrent prison terms of 25 years on each count.

Both the Appellate Division and the federal court found the evidence of defendant's guilt overwhelming (33 A.D.3d at 327, 821 N.Y.S.2d 584; 2009 WL 3241292 *14).

Defendant's Claims

Defendant does not claim that his sentence was illegal when it was imposed (Gray Affirm ¶ 74; White Affid ¶ 64). Rather, he claims that conditions that now exist in Fishkill Correctional Facility (“FCF”), where he is incarcerated, show that the Department of Corrections and Community Supervision (“DOCCS”) is demonstrating deliberate indifference to his health needs during the COVID-19 pandemic. As a result, “he is suffering the ‘de facto punishment’ of exposure to [the potentially fatal] COVID-19, which was ‘unforeseeable’ when he was sentenced” (Gray Affirm, id.). Accordingly, his sentence now violates the Federal and State Constitutions (U.S. Const., Amend. 8; NY Const., Art. I, § 5) because it is grossly disproportionate to the crime of conviction and constitutes cruel and unusual punishment (Gray Affirm ¶¶ 75, 81).

Defendant argues that “[a] sentence of confinement to a state penitentiary that is incapable of handling the medical needs of inmates brought by the novel coronavirus panedemic violates the 8th Amendment of the United States Constitution, and Article 1, § 5 of the New York State Constitution” (id. ¶ 17) for two reasons.

First, the volume and gravity of the outbreak within the prison walls reflect that the government, prison officials, and/or prison staff have demonstrated deliberate indifference to the health of prison inmates.

Second, the risk of death to exposure to COVID-19 is a de facto changed circumstance that has made White's sentence grossly disproportionate to his crime of conviction.

(Id. ¶¶ 18-19.) Regarding his claim of deliberate indifference, defendant asserts that New York “has been aptly described” as the global epicenter of the pandemic, that FCF has been “an epicenter within the New York state prison system,” and that “his housing unit was the epicenter of the outbreak at FCF” (id. ¶¶ 8, 65; White Affid ¶ 48). Counsel provides information about the “[s]pecific conditions at the Fishkill Correctional Facility” (id. ¶¶ 29-54, 59, 62-63; White Affid ¶¶ 4-52) and provides statistics about the number of FCF inmates who have been tested and the number of FCF inmates who have died (Gray Affirm ¶¶ 29, 30). He also includes the affidavit of Dr. Brie Williams, a professor of medicine at the University of California, San Francisco, who explains why prisons “create the ideal environment for the transmission of contagious disease” (id. ¶ 39 and Def Exh A).5 He also describes New York State's actions in response to the pandemic from March until the beginning of July 2020 (id. ¶¶ 25-33) and provides statistics about the numbers of New Yorkers who have been tested for the disease and those who have died from it (id. ¶ 37).

Defendant also provides specific information about his housing unit and his medical conditions and treatment.6 He lives in a 55-member unit in a cell with three roommates; all of the people in the unit use the same shared bathroom, which has five toilets and five showers. There is not enough room for social distancing in the bathroom or in the cell, in which the beds are approximately three feet apart (White Affid ¶¶ 4-6). In mid-April, “[s]igns warning inmates of the dangers of the coronavirus and the importance of hygiene and social distancing were placed throughout Fishkill in common areas” (id. ¶ 28), although “inmates are not complying with social distancing rules” (id. ¶ 42) and “social distancing rules are not being observed or enforced while prisoners are in transit, congregating in the recreation yard, or dining in the mess hall” (id. ¶ 43). In late April, two inmates from defendant's housing unit, who had shown signs of COVID-19, died (id. ¶¶ 16, 27, 36). Defendant has been issued hand sanitizer and masks, and is able to buy soap when his hand sanitizer supply is exhausted (id. ¶¶ ¶ 8, 14, 28, 37). But only one-quarter to one-third of the inmates and one-half of the staff in his housing unit are wearing masks (id. ¶¶ 40-41). Defendant states that neither antibody tests nor “[b]road testing of inmates” has occurred, and he has not been tested (id. ¶¶ 49-51). He believes that some inmates who have symptoms of the disease will not report their symptoms or ask to be tested, “and will cause others to fall ill” (id. ¶¶ 52-54).7

As for his specific medical conditions, defendant is a 56-year-old African American and Latino man who suffers from hyper- or hypothyroidism, Type 2 diabetes, arthritis and hypertension (Gray Affirm ¶ 76; White Affid ¶¶ 55, 58-59; Peo's Mem p. 12, fn 7). He is prescribed medication for his conditions (Gray Affirm ¶ 77; Deft's Exh D). He claims that his high blood pressure in particular, as well as his status as an incarcerated African-American man, put him at heightened risk for more severe complications if he contracts COVID-19 (Gray Affirm ¶¶ 76, 78).

Defendant relies heavily on People v. Horsey, Indictment No. 14-6340 (Sup. Ct., Albany County June 5, 2020) (Lynch, J.) (Def Exh F), in support of the motion. Horsey, also an inmate at FCF, brought a CPL § 440.20 motion to vacate his sentence on the ground that his continued incarceration constituted cruel and unusual punishment.8 The People consented to the requested relief (Def Exh F, p. 2) and the court granted the motion. The court held that “the current direct impact of COVID-19 on this high-risk Defendant renders the sentence ‘grossly disproportionate’ to the crime he was convicted of, and unconstitutional as cruel and unusual punishment” (id. p. 10).9 Although the court noted that “[t]he heightened threat of the COVID-19 virus to incarcerated individuals, standing alone, is an insufficient basis to sustain the requested relief [citations omitted],” it found that Horsey had “presented evidence that COVID-19 inmate infections at FCF appear to be out of control, as evidenced by multiple inmate deaths” (Def Exh F, p. 5). The court also found that while

FCF has provided some masks and sanitizer on a limited basis, as well as provided some signage warning of the dangers of COVID-19 [,] [i]t is manifest that such efforts are de minimis in relation to the risk. This is demonstrated by the fact as of May 12, 2020, FCF reported 89 positive COVID-19 cases, with 5 deaths.

(Def Exh F, pp 8-9.)10 The court held that, “[b]y its lackluster efforts to account for COVID-19 at its facility, FCF has acted recklessly, manifesting its deliberate indifference to [Horsey]'s medical needs and safety” (id. p. 10).11

The People's Response

The People oppose the motion. They argue first that defendant's challenge to the conditions of his confinement is not cognizable in a CPL § 440.20 motion, because he does not claim that the sentences were unauthorized by law, illegally imposed, or disproportionate in light of his crimes. Defendant's claim is based on the allegedly harmful conditions of his confinement, which can only be brought in a civil or administrative proceeding against DOCCS. Moreover, while the District Attorney of New York County must respond to this motion, it “does not oversee the state prison system, nor does it have access to the defendant's medical records, much less those of other inmates ․ [and therefore] is not n a position to respond to the defendant's claims that: (1) he is suffering from serious medical ailments; and (2) the conditions at FCF pose a particular danger to his health” (Peo's Mem p. 12). The People argue that defendant must bring a civil proceeding against prison officials in the county where the prison is located.

The People also argue that the Horsey decision is “an outlier.” Not only did the People there consent to the defendant's release, unlike here, but a judge of coordinate jurisdiction in the same county recently declined to follow the Horsey decision, holding that, even though the People there were (again) consenting to the granting of the CPL § 440.20 motion in the interest of justice, the court “ha[d] no authority to reduce a valid sentence in the interest of justice,” People v. Cancer, Albany County Ind. No. 33-6322 p. 6 (Sup. Ct., Albany County July 27, 2020) (Peo's Exh D).12 Moreover, courts in New York County, Bronx County, Richmond County and Suffolk County have also denied such motions (see Peo's Mem pp 11-12).

Even if the court were to reach the merits of the present claim, it should deny the motion because defendant's “allegations are insufficient to prove that the conditions at FCF rise to the level of deliberate indifference” (Peo's Mem p. 15). Defendant's claims are based “solely on his own self-serving statements,” which the court is not required to credit (id.). Moreover, publicly-available information from DOCCS shows that

(1) as of July 28, 2020, at 3:00 p.m., FCF had administered 478 COVID-19 tests to inmates, of which 103 were positive, 288 were negative, and 87 have results pending (the average number of tests conducted by other DOCCS facilities listed in the dataset was only 112-113 tests); (2) the defendant relies on data as of June 30, 2020, when FCF reported conducting only 195 tests, of which 83 were positive. According to the July 28, 2020, report, FCF had conducted 238 additional tests in 28 days, resulting in only 20 additional confirmed cases; (3) a of July 28, 2020, at 3:00 p.m., of the 103 positive tests, 82 inmates had recovered from the virus and five are deceased, leaving only 16 current positive tests in the facility. Based on the defendant's own statement and DOCCS' protocol, these positive tests and those whose test results are pending and are exhibiting symptoms, have been quarantined from the rest of the inmates.

(Peo's Mem pp 15-16, footnotes omitted.) Additionally, both defendant's own moving papers and “open source information provided by DOCCS” shows what steps have been taken to contain the spread of COVID-19 at FCF, including distributing masks and hand sanitizer, suspending inmate programming, family visits and attorney-client visits, putting up signs warning inmates about the dangers of the virus and the importance of hygiene and social distancing, putting defendant's housing unit in quarantine for a time, checking inmates' temperatures and limiting time and the number of inmates in the exercise yard. The People argue that these actions demonstrate that FCF “has taken steps to address the COVID-19 pandemic” and belie the claim of deliberate indifference (id. p. 17).


CPL § 440.20(1) provides that

At any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as matter of law.

(Emphasis added.) In addition,

[e]xcept as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced.

(CPL § 430.10.)

Thus, by its plain language, CPL § 440.20 is a statute that only involves the legality of a sentence at the time it was pronounced; the law does not permit a court to change the sentence once the defendant has been committed to the custody of DOCCS and has begun serving that sentence. See People v. Richardson, 100 N.Y.2d 847, 850 [767 N.Y.S.2d 384, 799 N.E.2d 607] (2003).

People v. Bevon Burgan, Bronx County Ind. Nos. 2948/08 and 2922/11 p. 1 (Sup. Ct., Bronx County April 22, 2020) (Fabrizio, J.) (denying CPL § 440.20 motion seeking furlough “until the medical dangers of the COVID-19 pandemic have subsided”) (attached as Exh 3). See also People v. Ira Goldberg, New York County Ind. Nos. 554/15 and 4619/16 p. 1 (Sup. Ct., New York County June 10, 2020) (Ward, J.) (denying CPL § 440.20 motion founded on claim that sentence had become cruel and unusual because elderly inmate with severe emphysema and high blood pressure was extremely susceptible to, and at great risk of death from, COVID-19; “the defendant's challenge is more correctly addressed as an objection to the conditions under which he is required to serve his sentence”).

In Horsey, the court granted the CPL § 440.20 motion despite the fact that the Appellate Division had previously rejected Horsey's claim that his sentence should be reduced in the interest of justice, 304 A.D.2d at 853, 758 N.Y.S.2d 695. The court cited People ex rel. Carroll v. Keyser, 184 A.D.3d 189, 125 N.Y.S.3d 484 (3d Dept. 2020), for the proposition that Horsey had properly raised his constitutional claim in a CPL § 440.20 motion (Def Ex F, p. 3). But this court does not agree that the Third Department clearly held that such a motion under CPL § 440.20 is proper. The petitioner in People ex rel. Carroll filed a proceeding on behalf of an inmate of Sullivan Correctional Facility pursuant to CPLR Article 70, seeking his release because of the spread of COVID-19 in that facility. Petitioner claimed that DOCCS officials were failing to protect the inmate from his high risk of infection and that his continued confinement was therefore cruel and unusual as well as excessive punishment, 125 N.Y.S.3d at 486. Although the Third Department “acknowledged the unsettled state of the law as to whether habeas corpus lies to challenge the conditions of confinement for individuals in [the inmate]'s position” (id. at 487), the court nevertheless reached the merits and reversed the grant of the petition, holding that petitioner had not met her burden of showing that the inmate's detention was illegal (id. at 487).13 The court then observed that petitioner “further alleges that [the inmate] was illegally confined in that his sentence, although lawful when imposed, became grossly excessive due to the risks created by the ongoing pandemic” (id. at 489–90). In disposing of that claim, the Appellate Division remarked

There is no doubt that sentences authorized by statute may nevertheless be “so disproportionate as would constitute cruel and unusual punishment in violation of constitutional limitations” (People v. Broadie, 37 N.Y.2d [100] at 110, 371 N.Y.S.2d 471, 332 N.E.2d 338 [1975] ․; see U.S. Const, 8th Amend; NY Const, art I, § 5). It is doubtful that a sentence proper at the time of imposition can become grossly disproportionate as a result of changed prison or inmate medical conditions (see Richardson v. State of New York, 182 Misc. 2d 845, 847-848, 700 N.Y.S.2d 378, ․ [Co. Ct., Monroe County] [1999] ) or that such a challenge could be raised other than in a postconviction motion to the sentencing court (see People v. Pena, 28 N.Y.3d 727, 730, 49 N.Y.S.3d 342, 71 N.E.3d 930, ․ [2017]; People ex rel. McCray v. Favro, 178 A.D.3d 1241, 1242, 116 N.Y.S.3d 710, ․ [2019]; see also CPL 440.20[1]; People v. Diaz, 179 Misc. 2d 946, 951, 686 N.Y.S.2d 595, ․[Sup. Ct., New York County] [1999]; Richardson v. State of New York, 182 Misc. 2d at 848, 700 N.Y.S.2d 378, ․). To the extent that the issue is properly before us, our review of the factors articulated in People v. Broadie, 37 N.Y.2d at 110-113, 371 N.Y.S.2d 471, 332 N.E.2d 338, ․ satisfies us that [the inmate]'s punishment is not “so grossly disproportionate to [his] offense as to amount to an unconstitutionally cruel and unusual punishment (People v. Jones, 39 N.Y.2d 694, 697, 385 N.Y.S.2d 525, 350 N.E.2d 913, ․ [1976]). Thus, as petitioner has failed to demonstrate the illegality of [the inmate]'s confinement, Supreme Court should have dismissed the petition.

(125 N.Y.S.3d at 490.)14 Because the petitioner in People ex rel. Carroll had not brought a CPL § 440.20 motion, this portion of the decision was dictum.

Moreover, in People v. Bedell, 210 A.D.2d 922, 621 N.Y.S.2d 967 (4th Dept. 1994), lv denied, 85 N.Y.2d 935, 627 N.Y.S.2d 997, 651 N.E.2d 922 (1995), the Fourth Department rejected a CPL § 440.20 motion grounded on a claim of cruel and unusual punishment made many years after the sentence was imposed, because it was the wrong vehicle to use to bring that claim. Bedell was convicted of murdering her daughter, id. at 925, 621 N.Y.S.2d 967. Fourteen years later, she brought a CPL § 440.20 motion to set aside the sentence on the ground that it was “unconstitutionally harsh” in light of her “rehabilitation and her extraordinary achievements in prison,” id. The motion court “denied the motion solely on the ground that it lacked authority to grant the requested relief pursuant to CPL 440.20,” id., and the Appellate Division “affirmed for the reasons stated in” the motion court's decision, id. at 922, 621 N.Y.S.2d 967. As the concurring judge wrote,

The Court's power to examine the constitutional dimensions of a State-imposed sentencing scheme, however, is limited to weighing the gravity of the offense against the danger the offender poses to society at the time the sentence is imposed (see People v. Broadie, supra, 37 N.Y.2d at 112, 371 N.Y.S.2d 471, 332 N.E.2d 338, ․; see also, People v. Escobales, 146 Misc. 2d 573, 575, 551 N.Y.S.2d 757, ․ [Sup. Ct., Bronx County 1990] ). I know of no authority that permits a mid-sentence constitutional assessment as proposed by defendant and the dissent, nor does the dissent provide us with one.

(210 A.D.2d at 923, 621 N.Y.S.2d 967.)15 See also People v. Goldberg, supra; People v. Burgan, supra; People v. Britt, 2009 N.Y. Slip Op. 31476(U), 2009 WL 2029561, * 1 (Sup. Ct., Kings County 2009) (CPL §§ 440.10, 440.20 motion brought by inmate convicted of attempted murder in mid-1990s, asking the court “to change his sentence based on the events that occurred [to him in prison] after a lawful sentencing;” “By electing to proceed under C.P.L. § 440.20[1], the focus of inquiry is on the sentence imposed by the court viewed under the circumstances as the existed on the sentencing date. See People v. Hilker, 134 Misc. 2d 420, 422-23, 511 N.Y.S.2d 503 [Tioga County Ct. 1987].16 Defendant's constitutional claims are solely based on the circumstances that existed after his sentencing date, after defendant had been incarcerated, and thus is denied of any remedy under C.P.L. § 440.20[1] by his own selection.”); People v. Ekinici, 191 Misc. 2d 510, 512-13, 743 N.Y.S.2d 651 (Sup. Ct., Kings County 2002) (court had no authority to grant CPL § 440.20 motion to vacate fine portion of sentence that was legally imposed before defendant's death); Richardson v. State of New York, supra.

This court has not found a case on point from the First Department, nor has one been called to the court's attention. Accordingly, this court respectfully declines to follow Horsey.

Although defendant here frames his claim as one going to the continued legality of his sentence, his real challenge, as the People correctly argue, is to the conditions of his confinement. Although defendant may feel an understandable sense of urgency in seeking release from FCF, he cannot use a CPL § 440.20 motion to circumvent the procedures that are in place to address claims of deliberate indifference to his medical needs. Other avenues are available to him. See People ex rel. Ferro v. Brann, 183 A.D.3d 758, 121 N.Y.S.3d 658 (2d Dep't 2020) (affirming denial of habeas petition because petitioner, who contracted COVID-19 while incarcerated, failed to demonstrate that prison officials had been deliberately indifferent to his medical needs or that he was entitled to immediate release from custody as a remedy for any failure to address his medical needs); Matter of Hakeem v. Wong, 223 A.D.2d 765, 766, 636 N.Y.S.2d 440 (3d Dept.) (“Although petitioner attempts to formulate a constitutional argument of cruel and unusual punishment under the 8th Amendment of the U.S. Constitution, this contention does not excuse the necessity of resorting to administrative relief. The question of whether there was deliberate indifference to his medical needs must first be heard at the administrative level before the constitutional issue can be addressed [citation omitted].”), lv denied, 88 N.Y.2d 802, 644 N.Y.S.2d 688, 667 N.E.2d 338 (1996).

Moreover, by bringing a motion under the Criminal Procedure Law, rather than an administrative proceeding, an Article 78 proceeding or a petition for a writ of habeas corpus under CPLR Article 70 in the county where he is incarcerated, defendant has left DOCCS out of this proceeding. But DOCCS is a necessary party to address his claims about the current conditions at FCF and to provide evidence about what steps FCF has taken to mitigate the spread of COVID-19. Like the court in Cancer, supra, this court has not “receive[d] any submissions from defendant's fellow inmates, medical providers, Fishkill staff, New York State Inspector General Staff or any representative of NYSDOCCS,” and many of defendant's claims are based on his own observations (Peo's Exh D, p. 4).

Finally, this court also agrees with the Burgan court (Exh 3, p. 3) that the relief defendant seeks here — a re-sentencing to time served — is not a legal sentence. Defendant does not dispute that his sentence was legal when it was imposed. Given the viciousness of defendant's own participation in the crime and the extent of the victim's injuries, this court also agrees with the People that the sentence cannot be described as unduly harsh or excessive.

For all of the foregoing reasons, the court holds that it has no authority to grant defendant's CPL § 440.20 motion.

In any event, even if the court were to consider defendant's claims on the merits, it would deny the motion. Defendant has not established that FCF has been deliberately indifferent to his medical needs during the COVID-19 pandemic. To the contrary, as the People point out, his own moving papers establish that prison officials have taken steps to reduce the spread of the disease. See also People v. Cancer, Peo's Exh D p. 3 (“Defendant's own submissions actually demonstrate steps that Fishkill has taken to address the COVID-19 pandemic.”). Defendant asserts that “FCF houses approximately 1,800 inmates” (Gray Affirm ¶ 31). Testing of inmates at FCF has clearly increased since defendant filed this motion, but only 20 additional confirmed cases were found between June 30th and July 28th, and no more inmates have died. As the Third Department noted in People ex rel. Carroll,

One could certainly infer ․ that the officials at DOCCS, like many other officials at all levels of government, failed to initially grasp the severity of the COVID-19 threat or the best methods of addressing it, and that they are now adapting to the situation. Deliberate indifference means more than being caught flat footed, or even negligent, and a failure to properly “alleviate a significant risk that [DOCCS officials] should have perceived but did not, while no cause for commendation, cannot ․ be condemned as the infliction of [unconstitutional] punishment (citations omitted).

(125 N.Y.S.3d at 489.)


For all of these reasons, the motion to set aside the sentence pursuant to CPL § 440.20 is denied.


1.   People v. Alicea, 33 A.D.3d 326, 821 N.Y.S.2d 584 (1st Dept.), lv denied, 7 N.Y.3d 929, 827 N.Y.S.2d 698, 860 N.E.2d 1000 (2006).

2.   White v. Warden, Great Meadow Correctional Facility, 2009 WL 3241292 (S.D.N.Y. 2009).

3.   Two other members of Alicea's organization who also became cooperating witnesses “saw blood on the knife that [defendant] was holding” as Alicea's group fled (id.).

4.   The drug conspiracy indictment was 00029-2000. The top charge was Conspiracy in the Second Degree, PL § 105.15, a Class B felony. On June 24, 2002, defendant pled guilty to this charge. On July 25, 2003, he was sentenced to 12-1/2 to 25 years in state prison (Exh 1). It appears that this sentence was ordered to run concurrently with that on Ind. No. 08614-00.

5.   The doctor's affidavit, dated March 27, 2020, is captioned “Application for Release from Custody.” It contains some information relative to New York (see Def Exh A ¶¶ 15, 19), although not specifically about FCF.

6.   Counsel has also included some facts about “Defendant-Movant Cancer,” who is also an inmate at FCF (Gray Affirm ¶¶ 62-63). See infra, p. ––––.

7.   Defendant also states that “[i]nmates from other houses at FCF who have tested positive and returned from the SHU are being housed” in his housing unit, “not their usual residences.” He adds that “[m]edical staff has informed [him] they believe that inmates in [his housing unit] are therefore at a higher risk of infection than others at FCF” (White Affid ¶¶ 55-56). He does not explain what “SHU” is, nor does he indicate whether these people are still ill, or contagious, or have recovered.

8.   Counsel in the instant matter represented Horsey (Def Exh F, p. 1). Horsey's application also included the affidavit of Dr. Brie Williams (id. p. 11). Horsey apparently lived in defendant's housing unit (compare id. p. 2 [noting that Horsey “has had direct experience with the COVID-19 pandemic due to the death of two (2) inmates residing within his 55-member housing unit. The 55 inmates share 5 toilets and 5 showers”] with White Affid ¶¶ 3, 5, 36).

9.   At the time of his motion, Horsey was “a 49-year old African American Male who suffer[ed] from hypertension” (Def Exh F p. 2), making him “a high-risk candidate, more susceptible to COVID-19 than the general population” (id. p. 10). He had been incarcerated for 20 years on a 25-year sentence and was scheduled to go before the parole board in October 2021 (id. p. 2). He was convicted of Robbery in the First Degree after he drove two accomplices to and from a bank, where the accomplices, “forcibly stole money while brandishing guns,” People v. Horsey, 304 A.D.2d 852, 852, 758 N.Y.S.2d 695 (3d Dept.), lv denied, 1 N.Y.3d 573, 775 N.Y.S.2d 790, 807 N.E.2d 903 (2003).

10.   Five FCF inmates had died as of May 12, 2020 (Def Exh F, p. 3). While tragically high, that number had not increased as of June 30, 2020 (White Affid ¶¶ 29-30), nor as of July 28, 2020 (Peo's Mem p. 16).

11.   It appears to this court that these conclusions were based on Horsey's assertions alone. Although the People consented to his release, nothing in the decision indicates that they conceded that DOCCS was deliberately indifferent to his medical needs. Nor does it appear that DOCCS was represented in any way in the proceeding.

12.   Counsel in the instant matter also represented Cancer, who clearly lived in the same housing unit as defendant here and whose affidavit apparently repeated many of the same facts as defendant's here (Peo's Exh D p. 3 [“Defendant also discusses the living arrangements of having 55 inmates share 5 toilets and 5 showers․ He also relays a situation where his housing unit was placed on a 14-day quarantine and then abruptly removed from quarantine status as apparent retaliation for a lack of volunteers to work in the mess hall during the quarantine period. Additionally, defendant has observed that only a quarter to a third of inmates are wearing masks in his housing unit․ [and] has observed only half of Fishkill's staff in his housing unit wearing masks.”] ). Dr. Brie Williams's affidavit was also included in Cancer's motion (id.).

13.   Recently two federal district courts also read the decision in People ex rel. Carroll as having reached the merits of the habeas claim. Tripathy v. Schneider, 2020 WL 4043042, * 6 (W.D.N.Y. July 17, 2020) (“the New York state courts are not denying petitioners' COVID-19 conditions of confinement claim as procedurally barred; rather, they are considering them on the merits. See People ex rel. Carroll v. Keyser, 184 A.D.3d 189, 125 N.Y.S.3d 484, 487 [3d Dep't 2020] [denying, on the merits, prisoner's habeas claim that his incarceration and sentence violated the Eighth Amendment ․]; People ex rel. Ferro v. Brann, 183 A.D.3d 758, 121 N.Y.S.3d 658, ․[2d Dept. 2020] [denying habeas petition because petititoner, who contracted COVID-19 while incarcerated, failed to demonstrate that prison officials had been deliberately indifferent to his medical needs ․].”; Stewart v. State of New York Department of Corrections, et al., 2020 WL 3415768 * 4, fn. 3 (E.D.N.Y. June 30, 2020) (“As the State points out, the procedural mechanism of Article 70 has remained available to state prisoners throughout the COVID-19 pandemic ․ state courts have responded to habeas petitions brought by state prisoners challenging the conditions of their confinement because of COVID-19 [citing People ex rel. Carroll, supra, and People v. Brann, supra].”).

14.   In People v. Pena, 28 N.Y.3d 727, 49 N.Y.S.3d 342, 71 N.E.3d 930 (2017), the Court of Appeals held that it lacked the power to review unpreserved constitutional claims that an aggregate sentence of 75 years amounted to cruel and unusual punishment. People ex rel. McCray v. Favro, 178 A.D.3d 1241 1242, 116 N.Y.S.3d 710 (3d Dept. 2019), was a CPLR Article 70 proceeding in which the prisoner claimed that his one-year jail terms were illegal because they should have merged into his indeterminate sentence. The court held this claim could not be brought in a habeas proceeding, but could have been raised on direct appeal or in a CPL § 440.20 motion. In Richardson v. State of New York, 182 Misc. 2d 845, 846-47, 847-48, 850, 700 N.Y.S.2d 378 (Co. Ct., Monroe County 1999), the court denied a CPL § 440.20 motion grounded on a claim of cruel and unusual punishment, brought by a former prison inmate who was convicted of selling $20 worth of LSD in 1971 and then fled to Canada from a prison work facility to avoid being returned to Attica State Prison. The court held that it did “not have the authority to modify the sentence imposed since it was a lawful sentence and did not constitute cruel and unusual punishment.” In People v. Diaz, 179 Misc. 2d 946, 686 N.Y.S.2d 595 (Sup. Ct., New York County 1999), the defendant claimed in a CPL § 440.20 motion that his sentence was cruel and unusual. The motion was granted, but that case is easily distinguishable on its highly unusual facts. “After one panel of the Appellate Division, First Department, construed the 911 call [in that case] as indicating that gunshots emanated from outside the apartment, and reversed [the codefendant's] conviction, a different panel reached the opposite conclusion and ruled against [Diaz], when his appellate counsel did not emphasize this issue. The anomalous result was that [Diaz] began serving 15 years' imprisonment, while his codefendant ․, equally culpable, was released,” 179 Misc. 2d at 950, 686 N.Y.S.2d 595. The court then found Diaz's sentence “ ‘grossly disproportionate’ as applied to him and thus ․ constitutionally prohibited as ‘cruel and unusual punishment’ given the disparate treatment of the codefendant ․, the nature of the offense, and the lack of physical violence,” id. at 956, 686 N.Y.S.2d 595. But see People v. Jogie, 118 A.D.3d 1025, 1026, 988 N.Y.S.2d 266 (2d Dept), lv denied, 23 N.Y.3d 1063, 994 N.Y.S.2d 322, 18 N.E.3d 1143 (2014) (reversing county court that granted CPL § 440.20 motion to set aside his sentence in the interest of justice, after co-defendant successfully appealed, pled guilty and received lower sentence; “[a] trial-level court has no authority under CPL 440.20 to reduce a valid sentence in the interest of justice [citations omitted].”).

15.   Indeed, “when the court has imposed a sentence of imprisonment and such sentence is in accordance with the law, such sentence may not be changed, suspended or interrupted once the term of imprisonment has commenced” (CPL § 430.10).

16.   Hilker was convicted under VTL § 1192(2) in 1986 and sentenced to a year in jail. “[B]arely one day” after he was remanded, he was released on bail pending appeal. He never brought an appeal and also never surrendered to serve his sentence, instead completing a drinking driver program. He then claimed in a CPL § 440.20 motion “that the sentence ha[d] been rendered invalid as a matter of law” by his completion of the program, 134 Misc. 2d at 421-22, 511 N.Y.S.2d 503. The court denied the motion because, inter alia, Hilker did not allege that the sentence “was flawed, when imposed ․ [because] ‘it was unauthorized, illegally imposed or otherwise invalid as a matter of law,’ ” id. at 423, 511 N.Y.S.2d 503, and Hilker appealed the conviction, the sentence and the denial of the CPL § 440.20 motion. The Appellate Division affirmed, 133 A.D.2d 986, 521 N.Y.S.2d 136 (3d Dept.), and leave was denied, 70 N.Y.2d 875, 523 N.Y.S.2d 502, 518 N.E.2d 13 (1987).

Miriam R. Best, J.

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