Opinion
2648/17
10-08-2020
The PEOPLE of the State of New York . v. George GARCIA, Defendant.
New York County District Attorney Cyrus R. Vance, Jr. (Keith Savino, of counsel) for the People. Center for Appellate Litigation (Hunter Haney, of counsel) for the Defendant.
New York County District Attorney Cyrus R. Vance, Jr. (Keith Savino, of counsel) for the People.
Center for Appellate Litigation (Hunter Haney, of counsel) for the Defendant.
Daniel Conviser, J. The Defendant was convicted after a jury trial of two counts of Criminal Possession of a Weapon in the Second Degree under PL §§ 265.03 (1) (b) (possession of a loaded firearm with the intent to use unlawfully against another) and 265.03 (3) possession of a loaded firearm outside a home or place of business). He was given the minimum determinate sentences for these crimes (two concurrent determinate sentences of 3 ½ years) followed by a period of post-release supervision with a term of 3 ½ years by Justice Roger Hayes of this Court (who recently retired) and is currently serving those sentences. A notice of appeal was filed on January 8, 2019.
He moves here for a stay or suspension of the judgment pending appeal and a release on his own recognizance pursuant to CPL 460.50. For the reasons outlined infra , that motion is granted except that the Court has required the posting of an unsecured surety bond and compliance with several other requirements outlined in a separate order as conditions of such stay or suspension and release. STATEMENT OF FACTS
An unsecured surety bond in the amount of $5000 has been posted by two obligors with close ties to the Defendant. The Defendant has waived the setting of two alternative forms of bail. see CPL 520.10 (2) (b). The obligors have limited income and assets, making $5000 a significant sum for them. In addition the Defendant will be required to periodically appear virtually before the court; live at a specified residence; not travel outside New York City and be subject to a revocation of release if there is reasonable cause to believe he commits a crime or fails to timely perfect an appeal.
Earlier Motion Denial
The Defendant earlier moved before this Court pursuant to CPL 440.20 (1) to be released from the service of the remaining term of his determinate sentences on the grounds that, given his underlying medical conditions and the danger he has been placed in by the COVID-19 pandemic, his continued incarceration would constitute cruel and unusual punishment and violate due-process. This Court denied that motion, without prejudice, in a bench ruling on August 10, 2020.
Background of Mr. Garcia's Convictions
The instant crimes occurred on July 9, 2017. Mr. Garcia is currently 67 years old and prior to this crime had no criminal history, having never been arrested before.
The crimes arose when the Defendant and his girlfriend went into a Harlem club. The Defendant's girlfriend was grabbed by a stranger who pulled her and ripped her shirt and a fight ensued between the stranger and Mr. Garcia, who were then both asked to leave. Mr. Garcia and his girlfriend left the club. Mr. Garcia said he believed people were following the couple, felt threatened and went to his trunk to retrieve a 9mm loaded handgun. He then began walking back to the club and racked the gun.
Police officers saw Mr. Garcia with the gun and arrested him. The gun had been legally purchased and Mr. Garcia had a concealed carry permit for it from Utah. He said the gun was in his trunk because he planned to go to a shooting range in New Jersey the following day. At his sentencing he expressed remorse for the "terrible mistake" he made.
Sentencing Transcript, pp. 20-21.
During his trial testimony, Mr. Garcia asserted that he had no intention of harming anyone with the gun but wanted to scare the people following him and force them to leave him and his girlfriend alone. In a recorded jail phone call four days after the crime, however, he told his girlfriend's son words to the effect that he planned to shoot the man who had assaulted his girlfriend. During his trial testimony, Mr. Garcia said he had told the son this so he could demonstrate that he would protect his girlfriend and that at the time of the call he was under stress from a lack of sleep, the failure to receive his diabetes medication and the fact that it was his first time in jail. During argument on the earlier motion to vacate his sentence denied by this Court, defendant's counsel argued that this recorded phone call was likely bravado and an attempt to impress the son, rather than an accurate reflection of Mr. Garcia's intent.
Mr. Garcia would be eligible to be released from the service of his determinate sentences, absent the loss of good time credits, after serving 6/7 of those sentences, or after about 3 years. He was remanded on January 10, 2019 and has thus served about 1 year and 9 months of his sentences. He would be eligible for conditional release on December 24, 2021.
Mr. Garcia's Medical Conditions
In addition to being 67 years old, Mr. Garcia suffers from hypertension, diabetes and dilated cardiomyopathy. Advanced age, being a male, hypertension and diabetes are all well-known factors which increase the risk of death or serious illness due to COVID-19. Dilated cardiomyopathy occurs when "the heart muscle begins to dilate meaning it stretches and becomes thinner and, as a result, the heart muscle doesn't contract normally and cannot pump blood very well... the heart grows weaker and the chances of heart failure and other heart-related problems, like heart valve irregularities, arrhythmias, and blood clots increase". This heart condition also increases Mr. Garcia's risk of death or serious illness due to COVID-19.
Defendant's Affirmation in Support of Motion ("Defendant's Affirmation") ¶ 15, citing " American Heart Association, Dilated Cardiomyapthy (additional citation and internal quotations omitted).
Defendant's Affirmation in support of earlier motion to vacate sentence, ¶ & 63, 64 & 65 (citations omitted).
Mr. Garcia has been hospitalized five times between 2013 to 2017 for symptoms including "shortness of breath, chest pain, and persistent coughing". He suffered cardiac arrest while incarcerated in 2019, requiring the use of a defibrillator. Medical records were provided by the Defendant in support of these assertions. The records indicate that as of January, 2020, Mr. Garcia's health conditions were stable.
Id., ¶ 65 (citation omitted).
Defendant's Affirmation, ¶ & 14, 15 & 16 (citations omitted); Medical Record from Center for Cardiovascular Care, Buffalo, New York (1/21/20) (attached to Defendant's motion).
Past Compliance with Court Orders, Prospective Living Environment & Background
Mr. Garcia was at liberty during the pendency of this case, including between his trial and sentence, without incident. Defendant's counsel asserts, without contradiction, that ‘[n]ot once did he miss a court date or otherwise fail to comply with the conditions of his release". He has lived in New York City for much of his life and upon release plans to reside in his former apartment with his girlfriend's son, Alfredo and Alfredo's family. He also has a strong support system of other family and loved ones who will assist with his care and has multiple children with whom he maintains close relationships.
The Center for Appellate Litigation, which represents Mr. Garcia, will also assist him through its reentry program. According to Defendant's counsel: "Mr. Garcia has no interest in doing anything [upon release] other than self-isolating as he is at serious risk of illness and death if he contracts the virus. For Mr. Garcia, reckless flight could be deadly".
Id. ¶ 29.
Mr. Garcia was born in Cuba and immigrated to Puerto Rico as a child, becoming a U.S. citizen shortly thereafter. He spent most of his adult life working as an auto mechanic in the Bronx. He is married but has been separated since 1998.
Limitations on COVID Containment in Prison
Mr. Garcia is currently confined at the Gowanda Correctional Facility in Erie County. The difficulties of maintaining social distancing and other hygenic measures to prevent the spread of COVID in prisons and jails is well established. As Justice Dwyer noted in his decision granting release to certain pre-trial detainees on constitutional grounds in People ex rel. Stoughton v. Brann, 67 Misc. 3d 629, 632, 122 N.Y.S.3d 866 (Sup. Ct., New York County 2020) "communicable diseases could not ask for a better breeding ground than a crowded prison".
The New York State Department of Corrections and Community Supervision ("DOCCS") reports that as of October 1, 2020, 1340 staff, 781 incarcerated inmates and 95 parolees had contracted COVID, with 756 inmates recovered and out of isolation. Five staff, 17 inmates and 4 parolees have died of the disease. The Gowanda Correctional Facility where Mr. Garcia resides, however, has had a much better track record with respect to incarcerated inmates, reporting one positive case who has recovered, 879 negative tests and 49 pending tests.
DOCCS Covid-19 Tracker (available on the DOCCS website).
Id.
It was in part because of the absence of COVID infections at Gowanda and, more generally, the absence of evidence that DOCCS had been deliberately indifferent to the health needs of inmates during the COVID pandemic that this Court denied the Defendant's motion to vacate his sentence on COVID grounds. Effective social distancing, however, may obviously be impossible in prisons since inmates live in close quarters and share showers, telephones, toilets and meals with numerous other inmates. The Defendant did not make an evidentiary presentation about conditions at Gowanda in connection with the instant motion. His counsel asserts that Mr. Garcia lives in a four person cell where he sleeps three feet away from other individuals two of whom are recent transferees. He also makes other assertions about the conditions at Gowanda, but these are not supported either by admissible evidence or an affidavit from Mr. Garcia.
Defendant's Affirmation ¶ 27.
The Appeal Issue
Mr. Garcia asserts that he will raise at least one meritorious issue before the Appellate Division: the argument that the trial court wrongfully precluded him from questioning prospective jurors about the defense of justification and otherwise limited questioning about juror attitudes towards gun possession and gun violence. It is correct that the trial court precluded any inquiry about a justification defense throughout the voir dire and curtailed questioning about attitudes towards firearms ownership during the last round of questioning.
There is no justification defense to the gun possession charges Mr. Garcia was convicted of. He argues, however, that juror attitudes towards such a defense were relevant as to whether he had the intent to use his firearm unlawfully, an element of one of the two gun possession charges he was convicted of. The unlawful intent issue loomed large during jury deliberations, being the subject of three written jury questions. The Defendant recounts how mass shootings were a particularly salient public issue during the year of the trial, with the killing of 13 people in a mass shooting in Thousand Oaks California occurring on the evening between the second and third rounds of voir dire.
Defendant's Affirmation, n. 11 (citations omitted).
Defendant's Affirmation, n. 10 (citations omitted).
The Defendant also asserts that the Court's limitation of questioning on gun issues during the final round of voir dire was improper since, during earlier rounds, similar questions had uncovered biases which led to the exercise of defense challenges. During the final round the Court precluded defense counsel from asking: "Who here thinks that individuals other than police officers and the military should not have firearms?". In response to defense counsel's question: "May I ask a personal opinion on firearms and individuals who have firearms?" the court responded "No". The Court said counsel could ask whether jurors could follow the law regardless of any personal views, but could not ask about jurors' personal views about lawful firearms ownership.
Trial transcript, p. 383 (submitted with Defendant's Affirmation).
Id. p. 385. The plural "firearms" in this quote is transcribed as the singular "firearm" in the transcript, but that is apparently an error.
CONCLUSIONS OF LAW
It is highly unusual for a trial court to grant release pending appeal to a defendant who has commenced the service of a state prison sentence. This Court has never previously done so. There are two primary factors, however, which, in this Court's view, justify the relief here. First, Mr. Garcia poses a minimal flight risk. Second, his continued incarceration now would put his health at significant risk, a condition which, even presuming his appeal were denied, might well not exist to the same degree by the time an appeal was determined, when COVID containment and treatments had likely improved and a vaccine might be available. In practical terms, in this Court's view, little would be risked by allowing Mr. Garcia to remain at liberty now. On the other hand, such relief would eliminate a significant risk to his health and life. The law, as discussed infra , justifies the relief here. But granting this motion is also, in this Court's view, simply the right thing to do.
While public safety is not a securing order consideration under New York law, this Court also does not believe Mr. Garcia poses a public safety risk now. He obviously committed a very serious and dangerous crime. But this Court does not believe this singular, momentary event in Mr. Garcia's otherwise long and apparently completely law-abiding life will be repeated during the pendency of his appeal, particularly when his life and health would be jeopardized by having unnecessary contact with other people.
The determination of this motion is governed by a number of related provisions of the Criminal Procedure Law. These are next analyzed here.
The Basic Procedural Rule
Upon application of a defendant who has taken an appeal to an intermediate appellate court from a judgment ... a judge ... may issue an order both (a) staying or suspending the execution of the judgment pending the determination of the appeal, and (b) either releasing the defendant on his own recognizance or fixing bail pursuant to the provisions of article five hundred thirty. CPL 460.50 (1).
The statute also outlines the judges who are empowered to grant such relief, which includes a justice of the supreme court in the county where the judgment was entered ( CPL 460.50 (2) (a) ) and specifies the rules which apply when such relief is granted. CPL 460.50 (4), (5) & (6). While applications like this are normally determined by the Appellate Division, the statute clearly allows such a motion to also be made to a justice of the Supreme Court and, in such cases, requires the Supreme Court to determine it. see People v. Meredith, 152 Misc. 2d 387, 578 N.Y.S.2d 79 (Sup. Ct., Kings County 1991).
The Bail Statute's Required Securing Order Factors Apply Following a Conviction
CPL 510.30 lists the factors courts must consider in setting securing orders. It is obvious this statute applies to the instant application because it specifically includes factors courts must review when release applications are made pending an appeal. The statute lists two related appeal considerations among its multiple provisions.
First, it provides that where a court considers "an application for bail or recognizance pending appeal" it must consider "the merit or lack of merit of the appeal". CPL 510.30 (2) (a) (viii). In addition:
Where the principal is the defendant-appellant in a pending appeal from a judgment of conviction, the court must also consider the likelihood of ultimate reversal of the judgment. A determination that the appeal is palpably without merit alone justifies, but does not require, a denial of the application, regardless of any determination made with respect to the factors specified in paragraph (a) [outlining all of the additional securing order considerations]. CPL 510.30 (2) (b).
Post-judgment securing orders, however, are also subject to the numerous other securing order considerations the Legislature has determined are relevant to flight risk. These factors apply in the same way to post-judgment securing orders as they do to defendants pending trial. The statute requires courts to "impose the least restrictive kind and degree of control or restriction that is necessary to secure the principal's return to court when required". CPL 510.30(1). Of course, once a judgment has been rendered and an appeal is pending, the least restrictive alternative may be the continued service of an incarceratory sentence. But this principle, like the other rules of the statute, applies to post-judgment securing orders.
In this Court's view, separate provisions of the bail statute requiring the least restrictive alternative securing order and specifying when release, release with conditions, monetary bail and remand are appropriate do not apply following conviction. That issue, however, would require a more extended discussion is not analyzed here. see CPL 510.10 (1) ; 530.45 (2-a).
Basis for Court's Decision
Flight Risk
It is clear that Mr. Garcia poses a minimal flight risk. Indeed, although the People opposed the instant application, they conceded that during the argument on this motion.
First, Mr. Garcia is no longer facing a determinate sentence of 3 ½ years were his appeal denied. He is facing the prospect of being returned to state prison for about 1 year and 2 months. Second, he has never failed to comply with court directives. Indeed, when he was at liberty pending sentence, he faced the certainty of an incarceratory term of at least 3 ½ years but nevertheless returned to court as directed. Other securing order factors under the statute also weigh in favor of Mr. Garcia's release including his close family ties, length of residence in the community and absence of any criminal history.
Mr. Garcia faces significant health challenges and has every incentive to avoid travel, interaction with people outside the "bubble" he will inhabit in his home or take other risks. Flight, even if he were so inclined, would likely pose a significant additional health risk for him. There is no indication he has any inclination to put his life and health in jeopardy by fleeing. Even in cases where a defendant seeks a release following a judgment, flight risk remains a central consideration:
Even though the statute [ CPL 460.50 ] recognizes that a convicted defendant is in a different position than one awaiting trial, the issue - regardless of whether recognizance or bail is sought in an ongoing criminal action or pending appeal from a judgment of conviction therein - is that of securing the defendant's future court appearance when required. People v. Kern 137 A.D.2d 862, 863, 524 N.Y.S.2d 521 (2nd Dept. 1988).
As the Kern Court held in assessing the flight risk in that case, "there is every indication from the record that an order staying the judgment of conviction and releasing the defendant on bail will be sufficient to secure his availability to obey the mandate of this court upon determination of the appeal and that his flight from the jurisdiction is unlikely". 137 A.D.2d at 864, 524 N.Y.S.2d 521.
Merits of the Appeal
This Court, obviously, will not serve on the appellate panel which will review Mr. Garcia's appeal. But on this motion, it is required to assess that prospective appeal's merits.
The securing order factors statute, as noted infra , allows but does not require a denial of a release application for the sole reason that an appeal is "palpably without merit". The word "palpably" is perhaps an odd choice for the statute's controlling standard. The most prominent definitions of the term "palpable": "capable of being touched or felt; tangible" obviously do not apply except metaphorically. The definitions: "Easily perceptible: noticeable" come closer to the mark. But even those definitions speak more to the ease of perception than the degree to which an appellate issue lacks legal merit. Perhaps the closest applicable definitions are "obvious" or "evident", formulations more akin to the familiar concept that some legal arguments are frivolous and can be dismissed out-of-hand.
Merriam Webster Online Dictionary.
Id.
Dictionary.com.
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In this Court's view, the appeal issue identified by the Defendant here is not "palpably without merit". The Defendant does not pose a frivolous argument. The trial court did curtail defense counsel's questioning on matters relevant to assessing whether jurors could fairly decide the firearms charges at issue during the trial.
On the other hand, in this Court's view, defendant's arguments are unlikely to prevail on appeal. "A trial court has broad discretion to restrict the scope of voir dire by counsel". People v. Jean, 75 N.Y.2d 744, 745, 551 N.Y.S.2d 889, 551 N.E.2d 90 (1989) ; People v. Pepper, 59 N.Y.2d 353, 358-59, 465 N.Y.S.2d 850, 452 N.E.2d 1178 (1983). Even if a court abuses that discretion, however, reversal is not warranted without a showing of prejudice. People v. Steward, 17 N.Y.3d 104, 113, 926 N.Y.S.2d 847, 950 N.E.2d 480 (2011). The trial court permitted extensive questioning by defendant's counsel on juror attitudes about gun ownership and gun violence.
Justification, while relevant to the question of whether the Defendant had the intent to commit one of the two crimes, was not directly at issue and the Court's limitation of defense questions about attitudes towards gun ownership in the final round still allowed the defense to explore the topic in other ways. There is also no claim that the trial court unduly limited the time defense counsel had for voir dire. Under all of these circumstances, in this Court's view, the trial court did not abuse its discretion. Even if the Appellate Division found otherwise, however, it would be difficult for the Defendant to demonstrate prejudice. This important securing order consideration, in this Courts view, thus weighs against granting the relief sought here. Delay of Appeal
The Defendant also argues that the resolution of this appeal may be delayed until around the time Mr. Garcia would be released anyway, a little more than a year from now. It is obvious to this Court that the First Department has done an extraordinary job of efficiently adjudicating appeals given the great challenges posed by the COVID pandemic. But delays have arisen both in the resolution of cases and, as the Defendant points out, the ability of his office to transcribe and otherwise obtain necessary appeal records. These delays militate in favor of the relief requested here.
The Impact of COVID Risk
The impact of COVID risk on the instant application obviously looms large and yet is difficult to fit into a legal construct. Prison or jail health risks are not statutory securing order considerations. The Defendant argues that COVID risks are relevant since, if he died, he would not only lose his life but forfeit his appeal. COVID risks are also relevant, as discussed supra , because they will discourage the Defendant from absconding. In this Court's view, however, the COVID issue is also significant for a more obvious reason.
Here, of course, as with any application like this, there is the risk that the defendant might serve additional unjustified prison time if the instant application were denied and he prevailed on appeal. But even if that does not happen, granting the instant application has likely mitigated the risk of harm caused by Mr Garcia's incarceration. The Gowanda Correctional Facility, where Mr. Garcia has been housed, has apparently effectively contained COVID infections thus far. This Court's concern is that an infection could easily arise at any prison and then be difficult to contain. Given his unusually serious health conditions and their compelling relationship to COVID risk, Mr. Garcia has no room for error. Contracting COVID could easily become a death sentence for him.
The tools we have to fight COVID are constantly improving as we learn more about how it is transmitted, learn new methods to control it and develop better therapeutics. We also face the real hope of a vaccine within the next year. George Garcia today faces one degree of COVID risk. But a year from now, after an appeal was decided, that risk would stand a good chance of being significantly reduced. Of course, that is impossible to know. It may even be that Mr. Garcia's health would deteriorate in the coming year and he would certainly be that much older.
On the other hand, in this Court's view, little would be lost by granting the instant motion. If Mr. Garcia's appeal is denied, he will still be subject to his lawful punishment. Defendants don't normally get to choose when they serve their prison sentences. But Mr. Garcia both poses little risk of flight and is particularly vulnerable to COVID in prison right now. Delaying the remaining service of his sentence will lessen the risk he will die of COVID in prison, at little cost.
The relief granted here is also consonant with the many creative ways in which governments have attempted to mitigate prison COVID risks by reducing jail or prison populations: through the early release of offenders whose terms were close to ending or who were facing short sentences; through the granting of release applications for offenders with serious health conditions and the reduction of pretrial populations to create safer prison environments.
For all of those reasons, Defendant's motion is granted with the conditions outlined here and in the Court's related order.