Opinion
1418/2020
07-16-2020
PEOPLE of the State of New York EX REL. Martha LINEBERGER, Esq., on behalf of Keshawn Decosta, Petitioner, v. Cynthia BRANN, Commissioner, New York City Department of Correction; Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondents
New York State Office of the Attorney General, by Assistant Attorney General Jonathan J. Wilson, for Anthony Annuci, Acting Commissioner, New York State Department of Corrections and Community Supervision New York City Corporation Counsel, by Assistant Corporation Counsel Kathleen D. Reilly, for Cynthia Brann, Commissioner, New York City Department of Correction Office of Janet Sabel, Esq., Legal Aid Society, by Martha Lineberger, Esq., for Petitioner Keshawn Decosta
New York State Office of the Attorney General, by Assistant Attorney General Jonathan J. Wilson, for Anthony Annuci, Acting Commissioner, New York State Department of Corrections and Community Supervision
New York City Corporation Counsel, by Assistant Corporation Counsel Kathleen D. Reilly, for Cynthia Brann, Commissioner, New York City Department of Correction
Office of Janet Sabel, Esq., Legal Aid Society, by Martha Lineberger, Esq., for Petitioner Keshawn Decosta
Miriam Cyrulnik, J. This is an application for a writ of habeas corpus seeking release of the petitioner from custody.
As a threshold matter, the State argues that the petition is procedurally defective, in that it should have been filed and served in the form of an order to show cause. This and scores of other petitions for writs of habeas corpus have been accepted by the Clerk of the Court and calendared in the Miscellaneous Motions and Special X parts since the start of the COVID-19 crisis. Under these extraordinary circumstances, and in the interest of justice, the court declines to dismiss the petition on procedural grounds.
In deciding this application, the court has reviewed and considered the Verified Petition for Writ of Habeas Corpus , with exhibits; and the submission by the New York State Attorney General, representing the New York State Department of Corrections and Community Supervision, including minutes of the Preliminary Parole Revocation Hearing, and copies of documents entered into evidence at the hearing. The court also heard oral argument. Finally, the court reviewed and considered an affirmation and supporting affidavits filed by the New York City Corporation Counsel on behalf of the City of New York and the New York City Department of Correction.
An Assistant Corporation Counsel appeared by affirmation on behalf of the City and the Department of Correction for the limited purpose of opposing any finding of deliberate indifference to the medical needs of inmates or any finding that the conditions of confinement violate due process. The City took no position on the merits of the petition, and did not participate in oral argument.
The basic facts are not in dispute. Petitioner is being held on a parole warrant lodged when he was arrested for gun possession on March 13, 2020. Petitioner was served with a Notice of Violation on March 16, 2020. He requested a preliminary hearing, which was scheduled for March 24, 2020. A preliminary parole revocation hearing was held on April 29, 2020, after which the Preliminary Hearing Officer found sufficient evidence to make a probable cause finding on one of the noticed charges.
Petitioner is currently remanded.
Petitioner asserts that his preliminary parole revocation hearing was defective for several reasons. First, he argues that it was untimely, having been conducted beyond the statutory 15 day limit. Second, he objects to the introduction of hearsay testimony by the Supervising Parole Officer, on confrontation grounds. Third, he argues that the hearing format violated his right to counsel, in that he was unable to have a private conversation with his attorney during the hearing.
Petitioner also seeks release on grounds related to the current COVID-19 pandemic. He asserts that he has "mild to moderate" asthma, which places him at high risk for serious illness and death if he were to contract the virus. He asserts that the New York City Department of Correction is unable to adequately protect him and other incarcerated individuals, and is acting with "deliberate indifference" to their health and well-being. He argues, too, that these issues amount to a violation of due process. Preliminary Hearing Issues
Timeliness
Executive Law §§ 259-i[3][c][i] and [iv] read as follows:
[c][i] Within fifteen days after the warrant for retaking and temporary detention has been executed, unless releasee has been convicted of a new crime committed while under presumptive release, parole, conditional release or post-release supervision, the board of parole shall afford the alleged presumptive release, parole conditional release or post-release supervision violator a preliminary revocation hearing before a hearing officer designated by the board of parole. Such hearing officer shall not have had any supervisory involvement over the alleged violator.
[c][iv] The preliminary hearing shall be scheduled to take place no later than fifteen days from the date of execution of the warrant. The standard of proof at the preliminary hearing shall be probable cause to believe that the presumptive releasee. parolee, conditional releasee or person under post-release supervision has violated one of more conditions of his or her presumptive release, parole, conditional release or post-release supervision in an important respect. Proof of conviction of a crime committed while under supervision shall constitute probable cause for the purpose of this section.
In Emmick v. Enders , 107 A.D.2d 1066, 1067, 486 N.Y.S.2d 559 [4th Dept. 1985], the Appellate Division stated:
The Executive Law does not require that a preliminary parole revocation hearing be completed within the 15 day period, but only that the hearing be ‘scheduled to take place’ within that period. When a preliminary parole revocation hearing has been timely scheduled, or held in whole or in part, and thereafter is adjourned for legitimate reasons, without prejudice to the petitioner, there is no violation of the 15 day limit (internal citations omitted)(emphasis in original).
The court affirmed the dismissal of petitioner's writ, noting that "nothing in the record [indicated] that respondent acted less than ‘energetically and scrupulously’ in scheduling and conducting petitioner's hearing" ( id. )(internal citation omitted). In the case at bar, according to State's Exhibit 1, entered into evidence at the preliminary hearing that took place on April 29, 2020, petitioner was timely served with a Notice of Violation on March 16, 2020, within three days of being taken into custody on the parole violation. The Notice of Violation indicates that a preliminary hearing was scheduled for March 24, 2020, well within the 15 day period set forth in Executive Law § 259-i[3][c][i]. It being undisputed that the preliminary hearing was timely scheduled, the issue for the court is whether it was adjourned for legitimate reasons, without prejudice to petitioner. The court finds that it was.
Petitioner does not dispute these dates (see petitioner's Verified Petition for Writ of Habeas Corpus , page 7, paragraphs 11-12).
While petitioner seeks to distinguish the instant matter from People ex rel. Allen v. Warden of George Motcham Detention Center , 39 Misc. 3d 546, 959 N.Y.S.2d 881 (Sup. Ct. Bronx County 2013), the court finds the facts and law to be on point. In Allen , Hurricane Sandy, a "superstorm" that caused severe, widespread damage and interrupted basic services in the tri-state area in the Fall of 2012, delayed the petitioner's preliminary parole revocation hearing, preventing it from taking place within 15 days of service of the Notice of Parole Violation. The unprecedented severity of the hurricane resulted in a series of executive orders from Governor Andrew Cuomo, which declared an emergency and suspended and modified...any other statute, local law, ordinance, order, rule or regulation or part thereof, establishing limitations of time for the filing or service of any legal action, notice, or other process or proceeding that the courts lack authority to extend through the exercise of discretion, where any limitation of time concludes during the period commencing from the date that the disaster emergency was declared pursuant to Executive Order Number 47, issued on October 26, 2012, until further notice. ( Id. at 554, 959 N.Y.S.2d 881.)
The petitioner in Allen also argued that the State failed to timely serve the Notice of Parole Violation, pursuant to Executive Law §§ 259-i[3][c][iii]. As this section of the Executive Law is not at issue in the case at bar, it is not necessary to address it here, except to note that the court applied the same reasoning to both timeliness issues.
The petitioner sought habeas corpus relief, based, inter alia , upon the State's failure to conduct the preliminary hearing within 15 days of the Notice of Parole Violation in compliance with Executive Law §§ 259-i[3][c][i] and [iv]. Relying upon Emmick v. Enders , supra , and the specific timing of the Governor's executive orders, which, it found, tolled the applicable time limits, the court determined that the preliminary hearing was scheduled within 15 days as mandated by Executive Law §§ 259-i[3][c][i] and [iv]. The court further held that the hurricane provided good cause for the brief adjournment of the preliminary hearing that took place.
In the case at bar, petitioner argues that the executive orders issued by Governor Cuomo in response to the COVID-19 public health emergency do not apply to preliminary parole revocation hearings required under Executive Law §§ 259-i[3][c][i] and [iv]. The relevant language of the Executive Order, dated March 20, 2020 is quoted by petitioner:
In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including, but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule or regulation, or part thereof,
os hereby tolled from the date of this order until April 19, 2020.
(See petitioner's Verified Petition for Writ of Habeas Corpus , pages 17-18, paragraph 45).
Despite petitioner's arguments to the contrary, the language of the executive order is clearly intended to encompass proceedings required to take place under the Executive Law. It states that it applies to "any specific time limit for the commencement, filing, or service of any legal action , notice, motion, or other process or proceeding , as prescribed by the procedural laws of the state" (emphasis by the court). In addition, the phrase "but not limited to " precedes the list of examples of the procedural laws to which it applies. Finally, following the non-exhaustive list of examples, the order further broadens the scope of intended procedural laws with the language "or by any other statute , local law, ordinance, order, rule or regulation, or part thereof." It is inconceivable that an order so obviously intended to apply to all procedural time limits within the state would specifically exclude the Executive Law.
With respect to the essential nature of the preliminary parole revocation hearing, petitioner analogizes it to a criminal court arraignment. Whether or not that is so, to the extent that a primary purpose of an arraignment is to provide an arrestee with notice of the charges against him, petitioner here, like the petitioner in Allen , was timely served with the Notice of Parole Violation weeks before the preliminary hearing was conducted. He was thus aware of the reason for his incarceration on the parole warrant and the charges he faced.
The court also notes that, although criminal court arraignments continued during the time period in question, preliminary hearings pursuant to CPL § 180.60, arguably more analogous to preliminary parole revocation hearings, were initially suspended due to the COVID-19 emergency. Similarly, based upon the arguments of counsel, it is undisputed that preliminary parole revocation hearings were suspended until April 9, 2020, at which time telephonic hearings were instituted until virtual hearings via computer could be arranged.
During oral argument, counsel for the State informed the court that members of the defense bar requested a suspension of in-person calendar appearances and refused to appear for final parole revocation hearings as a result of the COVID-19 emergency. This representation was not challenged by petitioner.
In the case at bar, petitioner's preliminary parole revocation hearing was adjourned for legitimate reasons, without prejudice to the petitioner. With no intent to diminish the profound impact of Hurricane Sandy, the court recognizes that the COVID-19 emergency is among the greatest challenges to face the United States, and the world, in more than a century. It provides ample cause for the relatively brief delay in conducting petitioner's preliminary hearing, which caused him no prejudice. Furthermore, "nothing in the record indicates that respondent acted less than ‘energetically and scrupulously’ in scheduling and conducting petitioner's hearing" (see People ex rel. Hampton v. Warden Rikers Island Correctional Facility , 211 A.D.2d 566, 567, 621 N.Y.S.2d 580 [1st Dept. 1995] ; Emmick v. Enders , supra ; People ex rel. Allen v. Warden of George Motcham Detention Center , supra ).
Accordingly, habeas corpus relief based upon the untimeliness of the preliminary parole revocation hearing is denied. Confrontation / Hearsay
Petitioner objects to testimony based upon State's Exhibit 1, which includes the Special Conditions of Release to Parole Supervision, as a violation of his statutory and due process rights at the preliminary parole revocation hearing. The Special Conditions of Release to Parole Supervision include a curfew, the violation of which the State sought to prove at the preliminary parole revocation hearing. State's Exhibit 1 was entered into evidence as a business record through Supervising Parole Officer Nicole Gilmore. SPO Gilmore was not petitioner's assigned parole officer and did not prepare the documents contained in State's Exhibit 1.
Petitioner's assigned parole officer, who prepared the Special Conditions of Release to Parole Supervision, had retired by the time of the preliminary parole revocation hearing.
Petitioner argues that testimony by SPO Gilmore about State's Exhibit 1, specifically the Special Conditions of Release to Parole Supervision, constitutes impermissible hearsay and that the State's failure to call his assigned parole officer deprived him of his right to confront an adverse witness. He relies upon People ex rel. McGee v. Walters , 62 N.Y.2d 317, 476 N.Y.S.2d 803, 465 N.E.2d 342 (1984) and People ex rel. Rosenfeld v. Sposato , 87 A.D.3d 665, 928 N.Y.S.2d 350 (2d Dept. 2011) in support of his arguments.
In McGee , the Court of Appeals stated:
Generally, a parolee has due process rights to confront adverse witnesses whose statements are offered as a parole revocation hearing. Although these rights embrace a strong preference for face-to-face confrontation and cross-examination, a hearing examiner may, nevertheless, upon a specific finding of good cause, permit the introduction of adverse hearsay statements without affording the parolee an opportunity to confront their declarant. Any determination that dispenses with the need for confrontation requires consideration of the rights' favored status, the nature of the evidence at issue, the potential utility of cross-examination in the fact-finding process, and the State's burden in being required to produce the declarant.
( Id. at 319-320, 476 N.Y.S.2d 803, 465 N.E.2d 342.)
In Rosenfeld , the Appellate Division sustained the petitioner's writ, noting that the hearing officer "made no specific finding of good cause to dispense with the production of the witness whose statements comprised the only evidence of the alleged violation" ( id. at 667 ). It went on to hold that "[i]n that absence of such a specific finding, a due process violation must be presumed" ( id. ).
The court finds petitioner's reliance upon McGee and Rosenfeld to be misplaced. First, petitioner's contention that the hearing officer permitted the hearsay testimony of SPO Gilmore without making specific findings regarding good cause must fail. Upon petitioner's objection to the hearsay testimony, the hearing officer stated that he was familiar with the mandates of McGee. His awareness of the favored status of the right to confrontation is evidenced by his careful consideration of the issue before ruling. He considered the nature of the evidence at issue by acknowledging that it was hearsay and that it appeared to be offered as "groundwork" or "baseline" evidence as opposed to substantive proof of the violation. The hearing officer also indicated his consideration of the potential utility of cross-examination of SPO Gilmore in the fact-finding process by expressing his expectation that the hearsay would not be enough to prove the charge and that he was most interested to hear how she intended to do so. With respect to the State's burden in being required to produce the declarant, the hearing officer was informed that the assigned parole officer had retired, but could be reached by telephone.
The court also notes that the hearing officer's proven familiarity with the provisions of McGee makes it reasonable to conclude that his ruling was also informed by that court's holding that:
In deciding whether confrontation is required, a hearing officer should consider not only the preference for confrontation, but also whether, under the circumstances, confrontation would aid the fact-finding process, and the burden which would be placed on the State in producing the witness. When, for example, otherwise admissible evidence is merely cumulative to its substance is objective factual material compiled under circumstances indicating it to be inherently reliable, no undue burden should be placed on the State by requiring it to produce the declarant.
( Id. at 322.)
The hearsay at issue consisted of SPO Gilmore referring to the Special Conditions of Release to Parole Supervision, which included a curfew. The document was admitted into evidence, without objection, pursuant to the business record exception to the hearsay rule. The hearing officer was justified in concluding that it was objective factual material compiled under circumstances indicating its reliability and that confrontation would do little to aid the fact-finding process.
Second, the instant matter is distinguishable from McGee and Rosenfeld in that the hearsay in question in both of those cases was the sole evidence of the violation offered by the State. By contrast, the hearsay in question at bar consisted of the testimony of SPO Gilmore, which referred to a document in evidence. That document established that a curfew was among the special conditions of petitioner's parole and that he was made aware of it upon the commencement of his supervision. The evidence of the violation was provided by a police officer whose testimony established that he observed petitioner at a time and place that placed him in violation of the curfew. The hearing officer stated, in rendering his decision on the record, that he found the testimony of the witnesses to be credible.
Accordingly, habeas corpus relief based upon petitioner's right to confront an adverse witness is denied.
Hearing Format
Petitioner argues that the telephone format of his preliminary parole revocation hearing deprived him of him of his ability to review evidence admitted at the hearing and to consult privately with his counsel during the hearing. The hearing officer overruled this objection, pointing out that petitioner was provided with the documentary evidence in advance of the hearing and that, given the public health emergency, the telephone format employed was the best method available at the time.
Through no fault of any party to this case, COVID-19 has disrupted virtually every aspect of legal and administrative proceedings in New York State. Petitioner's matter entered the Parole System just as the COVID-19 crisis commenced. Consequently, petitioner was subject to one of the early efforts to continue the adjudication of pending matters, while keeping safe all participants in the process.
According to the evidence and arguments of counsel, the telephone format was used for preliminary parole revocation hearings for a brief period of time, while the infrastructure for virtual proceedings was established. As the hearing officer acknowledged at the hearing, the telephone format was not ideal, but it was the best format available and postponement was not in petitioner's interest. Given the unprecedented nature of the COVID-19 crisis, this court must agree.
Accordingly, habeas corpus relief based upon the format of the preliminary parole revocation hearing is denied.
COVID-19 Issues
The arguments raised by petitioner relating to the COVID-19 pandemic are without merit, both globally and as to him individually.
The petitioner has offered absolutely no documentation on the issue of his medical condition. There are no medical records provided to confirm his diagnosis or what, if any, medication or other treatment he requires. Although counsel asserted during oral argument that petitioner had not been seen by medical providers since his incarceration, there are no records from Correctional Health Services corroborating that he sought any medical treatment at all during that time, for asthma or anything else, much less that any such treatment was denied. In short, the petitioner offers nothing more than boilerplate, conclusory statements to suggest that he is at heightened risk for significant Covid-19 complications.
Petitioner relies, instead, on what another justice entertaining writs seeking the release of detainees recently referred to as "...recycle[d] months-old predictions of an uncontrollable spread of Covid-19 in the City jails" (People ex rel. Moses and Ditchev (Mayo) v. Brann, et. al , Index No. 400092/2020E, May 20, 2020, p.3 [Sup. Ct. Bronx County, Fabrizio, J.]). The current conditions simply do not bear out these alarmist claims. It is worth noting that petitioner's papers cite almost exclusively to articles and opinion letters from March and April, 2020; petitioner has offered no updated statistics.
Numerous courts hearing petitions for writs of habeas corpus have concluded that the City is not acting with "deliberate indifference" to the medical needs of incarcerated individuals. See, e.g. , People ex rel. Harpaz (Mickens) v. Brann , Index No. 40001/2020, April 22, 2020 (Sup. Ct. Bronx County, Fabrizio, J.); People ex rel. Prokesch (Ross) v. Brann , Index No. 40090/2020, May 26, 2020 (Sup. Ct. Bronx County, Alvarado, J.); People ex rel. Stadnika (Thomson) v. Brann, et al. , Index No. 400077/2020, May 12, 2020 (Sup. Ct. Bronx County, Iacovetta, J.); People ex rel. Hamburg (Godoy) v. Brann, et al. , Index No. 40060/2020, May 5, 2020 (Sup. Ct. Bronx County, Fabrizio, J.); People ex rel. Williams (Lawrence) v. Brann, et al. , Index No. 400147/2020, 2020 WL 3422673, June 16, 2020 (Sup. Ct. Bronx County, Hornstein, J.) ; see also People ex rel. Mulry v. Franchi , 183 A.D.3d 790, 121 N.Y.S.3d 902 (2d Dept. 2020) (affirming a determination to that effect made by Suffolk County Supreme Court after a hearing); People ex rel. Ferro (Pasha) v. Brann, et al. , 183 A.D.3d 758, 121 N.Y.S.3d 658 (2d Dept. 2020) (affirming a determination to that effect made by Queens Supreme Court).
To the extent that the court in People ex rel. Stoughton (Jeffrey, et al.) v. Brann et al. , 67 Misc.3d 629, 122 N.Y.S.3d 866 (Sup. Ct. N.Y. County, Dwyer, J.) found the City's efforts insufficient to avoid a due process violation, at least as to some petitioners, this court respectfully disagrees with that finding and declines to follow it.
The documentation provided by respondent City of New York, particularly the affidavits from a number of high-ranking administrators from the New York City Department of Correction, provide "...ever increasing evidence that the City of New York implements, enforces, addresses, and complies with all guidelines announced by the Center[s] [for] Disease Control for ‘flattening the curve’ for COVID-19 spread in its jails, and ever decreasing evidence to justify petitioners' extreme argument that COVID-19 infections has ‘spread like wildfire’ among the thinning and spread-out ranks of detainees in city jails" (People ex rel. Eraso (Adams), et al. v. Brann, et al. , Index No. 400086/2020, May 12, 2020, p.7 [Sup. Ct. Bronx County, Fabrizio, J.]).
The court has considered and credited two affidavits from Patricia Feeney, Deputy Commissioner of Quality Assurance and Integrity; and affidavits from Richard D. Bush, Senior Correctional Institutional Administrator for Health Affairs, and Dr. Patricia Yang, Senior Vice President of Correctional Health Services.
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A combination of aggressive cleaning and sanitizing, the enhancement of social distancing, the imposition of a mask-required protocol for all staff and for inmates in congregant settings, the repeated medical screenings and monitoring, and the availability of treatment, coupled with the substantial reduction in the number of incarcerated individuals in custody, has resulted in a steady reduction in the number of inmates taken ill and, significantly, no additional deaths among the inmate population since late April. This court finds that the City of New York and the New York City Department of Correction have not acted with deliberate indifference to the medical needs of those in their custody.
This court finds further that the conditions of Petitioner's confinement do not violate due process.
Accordingly, habeas corpus relief based upon issues related to the COVID-19 pandemic is denied.
Petitioner's writ of habeas corpus is dismissed.
This constitutes the decision and order of the court.