Opinion
Index No. 40000/2020
04-27-2020
PEOPLE of the State of New York EX REL. Brittany CURTIS, Esq. on behalf of Lenard Berrian, Petitioner, v. Cynthia BRANN, Commissioner of Corrections, City of New York, and Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondents.
Janet Sabel, The Legal Aid Society, New York City (Brittney Curtis of counsel), for petitioner. James E. Johnson, Corporation Counsel, New York City Law Department (Desiree Alexander of counsel), for Cynthia Brann, Commissioner of Corrections, City of New York, respondent. Letitia James, Attorney General (Michael Keane and James Cooney of counsel), for Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, respondent.
Janet Sabel, The Legal Aid Society, New York City (Brittney Curtis of counsel), for petitioner.
James E. Johnson, Corporation Counsel, New York City Law Department (Desiree Alexander of counsel), for Cynthia Brann, Commissioner of Corrections, City of New York, respondent.
Letitia James, Attorney General (Michael Keane and James Cooney of counsel), for Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, respondent.
Ralph Fabrizio, J.
Petitioner Lenard Berrian, a sentenced prisoner released to parole supervision and now incarcerated following a finding that he violated a condition of his parole at a probable cause hearing, seeks release from Rikers' Island because of issues related to the COVID-19 pandemic. The Commissioner of the Department of Corrections and Community Supervision ("DOCCS") opposes only the part of the application alleging he violated petitioner's constitutional right to a prompt final hearing. The Commissioner, by his attorney, the Office of the Attorney General ("OAG") once again states that he takes no position about whether petitioner should be released by the Court due to allegations related to his medical condition and the COVID-19 pandemic itself. However, that second "no position" claim, voiced by the OAG in this case, is not correct; the Commissioner has a very strong position that petitioner is unsuitable to be released to the community. This decision address the writ as well as the serious concern that this Court has never before been informed that the Commissioner has taken such an administrative position, and the impact that this policy of not informing the Court of such a finding has on this Court's rulings. This concern is magnified by the circumstances of this writ.
Although petitioner presents this application as if it were being heard for the first time, in fact, he has sought the same relief from this Court on a prior occasion. Paragraph 21 of the Petition states: "Petitioners have made no prior application for the relief requested herein." In fact, petitioner made a prior application for the same relief -- release via habeas corpus -- less than three weeks ago. Coincidentally, not only was this Judge assigned to hear that petition, as part of a 101 petitioner "mass writ," but on April 13, 2020, this Court denied the application. The OAG alerted the Court, the City and Petitioner to this fact on Friday, April 24, 2020, a few hours after this second, or what the law calls "successive" writ, was assigned to this Court to be heard on Monday, April 27, 2020, as part of a random assignment to an Emergency Part. Petitioner's failure to apprise the Court of every prior writ application for similar relief is a "fatal defect" in the Verified Petition. See People ex rel. McAllister v. McMann , 25 A.D.2d 460, 461, 266 N.Y.S.2d 93 (3rd Dept. 1966). Notice to the Court of all prior Article 70 applications, identical or even similar, is an indispensable requirement for all petitions under CPLR § 7002(c)(6). Petitioner's reason for not doing so, stated during the court appearance, was that this is the form used to prepare these writs.
In seeking release, the petitioner substantively relies on the same COVID-19 information that he relied on in his prior application by listing the same predictions about prison conditions in Paragraphs 25 through 50 that have appeared, without significant updating, in these applications; this information includes news stories published and opinions expressed by individuals in March 2020, predicting an exponential spread of COVID-19 infection in the City jails. The legal argument shifts to a claim that petitioner has been deprived of his constitutional right to a timely parole revocation hearing. But heavily sprinkled throughout this legal argument are continued references about prejudice to him due to his medical condition by his continued confinement at Rikers' Island. This was the same record petitioner made when this Court heard his first application for release as part of the 101-petitioner mass writ. People ex rel. Stoughton (Ruffin) v. Brann , No. 26011/2020, April 13, 2020, (Sup. Ct. Bronx County Fabrizio, J.). The Court denied that application, finding, inter alia , that the City had not acted with deliberate indifference to his medical needs. Once again, petitioner attacks the conditions of his confinement. The Court has no reason to find that the City is acting with deliberate indifference to petitioner, a ruling already made in Ruffin . Some exhibits submitted in support of this application are the same medical letters and records he provided in the previous proceeding. While petitioner provides this information in the same depth and with the same detail as in the first application, he inexplicably argues it is not relevant to his instant habeas corpus claim. This raises an obvious question — then why are they here? Irrelevant facts and arguments do not belong in any legal application; these submissions are not made in passing; they are inextricably intertwined with this application.
Although the State argues this petition should be dismissed on procedural grounds as a successive writ [this legal doctrine is an important one; it prevents inconsistent results and alleviates the burden placed on courts who would be required to hear endless writs brought by the same detainee. See State ex rel. Sassower v. Cunningham , 112 A.D.2d 119, 120, 492 N.Y.S.2d 608 (1st Dept. 1985) ], the State has also provided information it did not provide the first time around relating to its position about whether petitioner should be considered for habeas corpus release. During the on the record hearing that lasted two days in connection with the Ruffin mass writ, OAG's position was repeatedly emphasized: it was not taking a position but wanted to provide information for the Court to rule based on the facts. That is the same statement made by the OAG during hearings on every petition heard before this Court. However suddenly, in an affirmation filed at Court direction in this matter, the OAG references a memo dated April 7, 2020, from the Commissioner to DOCCS managers. In their affirmation in this second matter, OAG still states that it "defers a ruling to the Court" on whether petitioner should be released based on the COVID-19 allegations; this is just another way of saying OAG is not taking any position. What is startling about the responding affirmation is the revelation that DOCCS had "conducted an individualized review of [parolees held on] technical violations and cancelled the delinquency of any warrant where an individual had adequate housing available and the release of an individual would not present an undue risk to public safety" in response to the COVID-19 pandemic (Exhibit E to State's return/response). Petitioner was part of that individualized review process. It took place before the first writ was filed. For an agency that insisted, and continues to insist, it is taking no position, the opposite is true; it has actually taken quite a strong one, and in particular when it comes to releasing a parolee detained for a parole violation to the community.
This Court is disturbed by the fact that it was never apprised by the OAG that the Commissioner had reviewed the circumstances of this parole detainer and this petitioner's record prior to the time this Court heard the first application for his release as part of that 101-petitioner mass writ. According to the OAG affirmation in this matter, "[p]etitioner has a criminal history that spans his entire adult life, with five felony and twenty misdemeanor arrests, including robbery, assault, and drug crimes" This is petitioner's third stint on parole. Petitioner has a history of parole violations on this matter as well as while he was under parole supervision during previous sentences. One of the parole specifications in this matter is far from "technical." The OAG affirmation alarmingly states, "[petitioner] has mental health issues and became violent in December 2019 when he walked into a program he had been prohibited from attending and attacked two women on the staff. He is perceived by DOCCS as being a danger to himself and others."
As noted, whenever it has appeared before this Court, which is now in excess of 130 parole writs, the OAG, as the lawyer for DOCCS, has consistently taken the position that it takes no position on releasing these parolees, even ones serving time assessments following a final adjudication. See People ex rel. Harpaz (Mickens) v. Brann , No. 40001/2020, April 22, 2020 (Sup. Ct. Bronx County Fabrizio, J,). And yet, this Court now understands that the Commissioner has not only taken a position during an administrative review process to deny release of certain parolees, but he has specifically denied release based on legitimate administrative policy concerns about releasing convicted felons who are a danger to the public back into the community and who have no place to live.
This Court demanded an affirmation from the OAG in this matter when it was assigned to hear this case; an affirmation or affidavit, called a "return," the term used at common law, must be filed by a party sued under CPLR Article 70. CPLR § 7008(1). The OAG has almost never filed a "return" to answer any of the prior "COVID" writs heard by this Court. This Court has also directed OAG to file one in response to any future Article 70 petition assigned to this Court. In its responsive papers in this matter, the OAG reveals the following information about the Commissioner's administrative decision:
21. Based upon Petitioner's history and current needs, he was not considered an appropriate candidate for revocation with restoration to parole supervision. See Violation of Parole Papers for Lenard Berrian, attached hereto as Exhibit B. 10
22. Accordingly, Petitioner would not have met the standards set forth in DOCCS' review of inmates and parolees eligible for early release in response to the COVID-19 crisis, given his mental health issues and his violent conduct in attacking a social worker and another staff at a program he was no longer attending. See Declaration of Anthony J. Annucci, dated April 10, 2020, ¶¶3-5, attached as Exhibit F.
The Declaration of Commissioner Annucci, Exhibit F, is an affidavit filed in connection with a federal lawsuit brought against Governor Andrew Cuomo in the United States District Court for the Southern District of New York. Annexed to that affidavit as Exhibit 2 is the aforementioned April 7, 2020 memo. In that memo, the Commissioner acknowledges the self-evident fact that the Governor has aggressively addressed the COVID-19 pandemic; to this Court, he has done so in a diligent, data-based and responsible manner. The memo details guidelines to be used by DOCCS supervisors in determining whether to issue new parole warrants and lodge parolees in local jails in light of the COVID-19 pandemic, which in and of itself is an aggressive and unprecedented action. The memo references the massive effort to review the circumstances of individual parolees being held in local jails. It details criteria DOCCS utilizes in determining whether to release certain parolees and/or restore them to community supervision in the COVID era. Based on this review, according to the memo, the Commissioner had already, as of that date, "cancelled the delinquency of any warrant where an individual has adequate housing available and the release of an individual would not present an undue risk to public safety ."
As noted, it was only during this successive writ proceeding that this Court was informed the Commissioner found petitioner did not meet his standard for release; this information, was available and was not disclosed during the mass writ court appearances on April 8 and April 9, 2020. This Court has no idea how many other petitioners who have sued for their release via habeas corpus review and whose applications were heard by this Court have had their parole conditions reviewed by DOCCS under COVID-19 protocols and were deemed ineligible for release. The Court does not know whether this information has been imparted to attorneys representing still-confined individuals. The Commissioner has acted; his decisions would more appropriately be challenged via Article 78 review. At a minimum, the Commissioner must advise every judge assigned to hear a parole writ of all of his own public safety-based decisions preventing a parolee's release to the community. Where that decision includes a finding that the parolee has nowhere to live, that information is important as well. It is now the alarming number of people living in the subways who pose a public heath risk to the population. Petitioners cite to decisions, and advocate for this Court to follow them, which use the balancing test constitutionally required in 1983 lawsuits and class actions in determining whether medically risky prison conditions justify granting a detainee's application for habeas corpus release to the community. See People ex.rel. Stoughton (Jeffrey) v. Brann , 122 N.Y.S.3d 866, 2020 NY Misc. LEXIS 1384, April 6, 2020 (Sup. Ct. New York County, Dwyer J.) ; People ex.rel.James (Otero) v. Brann , Index No. 260169/2020, April 2, 2020 (Sup. Ct. Bronx County, Lieb, J.). This Court has respectfully declined to hold that habeas corpus release is a remedy available to detainees who seek release from City jails due to the realities of being detained in any jail during the COVID pandemic, and particularly when the City has shown no deliberate indifference to the medical concerns of detainees and instead has responsibly addressed the specific risk and adhered to all guidelines advised by the Center for Disease Control ("CDC"). Nonetheless, for judges who use and follow those decisions, this information would seem to be crucial to any judge who balances risk of flight and perhaps dangerousness in determining COVID-19 writ applications involving parolees.
On Saturday April 25, 2020, when reading the Daily News, and after this Court had directed the OAG to submit a return in this matter, this Court learned that one the petitioners ordered released in the Ruffin mass writ had already been determined by the Commissioner to be too dangerous to be released from custody based on an administrative review process before that writ was heard. This Court learned this, not from the OAG, not from the Commissioner, but in a footnote is an opinion referenced in that news report. The federal judge denied a request for injunctive relief in connection with parole detainees not released under DOCCS guidelines. Bergamashi v. Cuomo , 2020 Civ. 2817, April 20, 2020 (S.D.N.Y., McMahon, J.). It is inexcusable for the OAG not to inform judges of the Commissioner's determinations in responding to any and all parole writs where such decisions have been made. The OAG's decision to defend the Governor in a lawsuit and justify the Commissioner's decision not to release individuals based on public safety concerns in federal court, and then march into state court and say the Commissioner takes no position but would welcome a decision on the facts, and not inform the judge of the Commissioner's fact-specific denial of release, is not only legally inconsistent, but is itself a practice that places the public in danger. This Court directs that this practice ceases immediately.
Petitioner also seeks release on constitutional due process grounds. He has not yet had a final parole revocation hearing. Based on his calculations, petitioner argues that when this petition was filed, 101 days had passed since the initial hearing finding probable cause to hold him for a final parole revocation hearing. Petitioner acknowledges that he was engaged in negotiations with DOCCS concerning a time assessment, and that DOCCS offered an 11-month time assessment on February 18, 2020. Petitioner did not accept that offer. According to the OAG, the final hearing could not proceed that day because petitioner became "agitated," and it had to be adjourned.
Petitioner correctly argues that he has a constitutional right to a timely final parole revocation hearing under Morrissey v. Brewer , 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Under state law, DOCCS has 90 days to commence a final hearing. Petitioner claims that 78 days had already elapsed on March 17, 2020, when he was once again scheduled for that hearing. The State disputes petitioner's time calculations and alleges that the 90-day period does not expire until May 8, 2020. Notably, the State cites a request from the Legal Aid Society dated March 15, 2020 that DOCCS suspend all parole hearings, as well a statement made on March 16, 2020, informing DOCCS that Legal Aid attorneys would no longer attend any parole hearings at Rikers's Island. The final hearing is now actually scheduled for May 8, 2020. The State argues that this is timely under standard "readiness" calculations performed when a judge determines whether delays in holding final hearings are attributed to the defense, and excusable. Of course, delays due to extraordinary circumstances can also be excused under the Executive Law.
Decisions concerning whether the time has expired for the State to conduct a final parole revocation hearing are decided on a case by case basis. See People ex rel. Rosado v. New York State Parole Board , 51 A.D.2d 753, 379 N.Y.S.2d 450 (2nd Dept. 1976). While this Court might order a hearing to resolve the time calculation dispute in different times, there is no need to do so at this time. As this Court, and others, have found, procedural time limits contained in all state statutes were, and continue to be, suspended by Executive Order. See People ex rel. Hamilton (Martinez) v. Brann , 2020 N.Y. Slip Op. 50392(U), 2020 WL 1695541, April 3, 2020, Sup. Ct. Bronx County (Fabrizio, J.) ; People ex rel. Nevins (Badillo) v. Brann , 122 N.Y.S.3d 874, 2020 N.Y. Slip. Op 20083, April 13, 2020 (Sup Ct, Queens County, Zayas J.). Petitioner has not challenged the constitutionality of those emergency orders. He argues that they do not suspend the statutory time to hold final parole hearings as set out in the Executive Law. Of course, no order can limit or suspend habeas corpus challenges; but these orders can, and do, constitutionally suspend procedural time limits in all statutes that have such time limitations and directives, pursuant to the Governor's power to act in the face of this unprecedented pandemic. The Executive Law is the Governor's Law. He did not exclude his law from the sweeping language of his own Executive Order. Petitioner's time to have his final hearing is tolled by his orders.
For all the above stated reasons, this petition is dismissed.