Opinion
Index 812951/2021E
09-30-2021
PEOPLE OF THE STATE OF NEW YORK EX REL. LARA BELKIN, ESQ, on behalf of LIZARDO PEREZ, Petitioner, v. VINCENT SCHRIALDI, Commissioner of Corrections, City of New York, Respondent.
Unpublished Opinion
WRIT OF HABEAS CORPUS DECISION AND ORDER
Ralph Fabrizio Judge
Petitioner brings this Article 70 bail writ challenging the legality of realtor's continued detention on monetary bail on Rikers' Island on three separate grounds. First, he claims that the city has shown deliberate indifference to the current, well-documented conditions at Rikers' Island, which he claims have resulted in, inter alia, lack of personal access to medical care or prompt appointments to raise personal medical issues, deprivation of food, and poor health conditions due to overcrowding and lack of staffing. As a separate but related argument, he claims that this Court must release him on this writ under a balancing, due process test set out in Cooper v. Morin, 49 N.Y.2d 69, 81(1979). Finally, he argues that this Court should find that Justice Margaret Clancy abused her discretion as well as failed to make a proper record when she set the current bail condition. The application to release relator is denied and the writ is dismissed.
THE CITY IS NOT DELIBERATELY INDIFFERENT TO THE SERIOUS CONDITIONS AT RIKERS' ISLAND
No one can dispute that conditions at all jail facilities at Rikers' Island are, in a word, deplorable. The unilateral, illegal actions of corrections officers who fail to show up for work, the uptick in violent crimes throughout New York City since the earliest days of the COVID pandemic, and the bail statutes which permit judges to set cash bail almost exclusively in cases where defendants are charged with crimes of violence, create a perfect storm of a jail that is out of control. Reports of violent gangs taking over facilities staffed by a few, but commendably brave, corrections officers are not merely apocryphal. Undetected or untreated mental illness has contributed to a number of inmate suicides. The rise of the highly contagious Delta variant has led to outbreaks of COVID and the recent quarantining of an entire Riker's jail - the Otis Bantum Correctional Center. There is concern everywhere, including within the judiciary.
In part, this writ seeks relator's release based on unhealthy prison conditions. Although the allegations are very different than those raised in hundreds of "COVID" writs in the earliest days of the pandemic, from March through July 2020, the legal arguments are the same. The filing of the COVID writs did not end because the pandemic ended. Clearly, the pandemic is still with us, and there is no end in sight. It ended because appellate courts found that the allegations of deliberate indifference by city, state, and county officials were completely unfounded. See Matter of People ex rel. Stoughton v. Brann. 185 A.D.3d 521 (1st Dept. 2020); People ex rel. Ferro v. Brann. 183 A.D.3d 758 (2nd Dept. 2020). Where a detainee raises a personal claim alleging a serious personal health or safety issue connected to prison conditions, a court should consider all the evidence and rule whether the danger to a particular detainee merits granting the writ.
In this case, the Court holds that petitioner has not met his burden of demonstrating that respondent has acted with deliberate indifference to jail conditions. To be sure, such a finding would lead a court to order that every detainee be released. In a court of law, petitioners must meet a burden that would show, not that conditions are bad, but that the jailers are so indifferent to the conditions that they have turned a blind eye to the seriousness of the conditions. Respondent has addressed and continues to address the jail conditions and the circumstances which have created them with eyes wide open. Moreover, relator's claims of horrific personal treatment is in some cases exaggerated and in others fabricated.
Relator has been part of the Riker's jail population, held on charges including first degree assault, since May 13, 2021. At his criminal court arraignment, the judge set bail in three forms: cash bail in the amount of $100,000, and two forms of bonds in the amount of $300,000 - one being an insurance company bail bond, and the second being a partially secured bond, requiring the posting of $30,000 cash as collateral. Relator did not seek any bail review in this matter at the time he was arraigned on the indictment on June 22, 2021. However, relator claims that, from nearly the moment of his current confinement through September 27, 2021, he has either been completely denied medical attention for mental health related and medical issues, or has not been afforded proper medical care. Relator, himself, has not submitted any sworn document in support of his claims. Petitioner has submitted medical records from May and June, 2021. What those records show is, at that time, relator was in fact seen numerous times for gastrointestinal complaints, including GERD. He was prescribed a series of medications to treat his G1 complaints. On one occasion, when he complained of chest pain, he was immediately seen by a physician, given an ECG, and referred for follow-up.
Relator was also referred for a mental health screening after being flagged as an inmate who had an adjustment disorder. However, these certified medical records document how relator, on multiple occasions, refused to be escorted to be seen by a mental health clinician. The one reference in the records suggesting relator has any mental health concerns that need to be addressed is a self-report of being prescribed a sleeping medication while receiving mental health counseling prior to his arrest. Correctional Health Services records compiled during periods when relator was confined to city jails on prior occasions report no mental health diagnosis. The documentary proof petitioner provides contradicts relator's claims of being deprived of access to medical care during this period of his confinement.
Yet, relator continues to allege, only through counsel, that he is an inmate who cannot monetary bail in the amount set in this matter, and this Court finds those same compelling reasons outweigh and justify denying this writ to release defendant, to protect "the State's ability to enforce the law against those who might not return to face justice once released," which include allegations of realtor's reasons why petitioner is needed to continue to be held, such as their commission of serious offenses and violations of parole. Matter of Stouqhton. 185A.D.3dat526.
JUDGE CLANCY DID NOT ABUSE HER DISCRETION WHEN SHE REDUCED RELATOR'S BAIL TO ITS CURRENT AMOUNT, AND SHE APPLIED THE CORRECT LEGAL STANDARD WHEN SHE DID SO.
Relator is correct in alleging that the People improperly urged Justice Clancy to: 1). find that the standard for ruling on relator's September 15, 2021 bail application required finding a change in legal circumstances; 2). Consider as a proper bail factor, based on the factual allegations, that relator should be considered a fight risk because he placed his interests above those of society; and 3). Find that because he testified before the grand jury and was indicted that he should be kept in jail because now he knows that the petit jury would find him guilty beyond a reasonable doubt. However, realtor is incorrect in alleging that Justice Clancy factored these claims into her bail ruling. To the contrary, the transcript shows Justice Clancy considered only appropriate bail factors and provided a sufficient record to show she exercised appropriate discretion when she reduced relator's bail in a clearly de novo bail ruling.
This Court's legal role on habeas review is extremely limited. "The proper scope of inquiry for a habeas court reviewing another court's bail determination is whether the bail court abused its discretion by [setting] bail without reason or for reasons insufficient in law" (People ex rel. Kubv v Merritt. 96 A.D.3d 607. 608. 947 N.Y.S.2d 454 Mst Dept 20121. Iv denied 19 N.Y.3d 813. 976 N.E.2d 252. 951 N.Y.S.2d 723 r2012l). "It is not the function of the habeas court to examine the bail question afresh or to make a de novo determination of bail" (id. [internal quotation marks omitted]). People ex rel. Watters v. Warden. 106 A.D.3d 415, 415 (1st Dept. 2013); see People ex rel. Kaufman v. Brann. 69 Misc.3d 506, 527-28 (Sup. Ct. NY County 2020).
This Court has thoroughly reviewed the minutes of the bail application and Justice Clancy's stated reasons for her discretionary bail decision. Petitioner's claim that Justice Clancy did not make the requisite individualized finding to support the imposition of cash bail is specifically refuted by the minutes. First, when Justice Clancy announced her decision, she said, "All right. As you all have pointed out, under the new bail statute, I have to make an individualized finding regarding bail taking into account numerous factors." (Minutes, September 18, 2021 at page 18). Before reducing the bail from the amount set by the criminal court judge months earlier, Justice Clancy noted that "based on all these factors, making an individualized finding that I do believe defendant is a flight risk and that some bail is appropriate." (Minutes, September 15, 2021 at pages 21-22). These records demonstrate that Justice Clancy used the correct criteria to determine whether realtor was entitled to presumptive release, whether he should be released to a program, as relator urged, or whether monetary bail was the least restrictive condition to secured relator's return to court.
Although it appears that there was extensive off the record discussion at the bench of what factors Justice Clancy would be considering when making the bail decision, petitioner agreed that what is in the recorded minutes is all on which petitioner is relying.
Justice Clancy further memorialized on the record all factors she had stated she considered, which are factors specifically listed in the bail statute. Thus, Justice Clancy said she considered "the defendant's activities and history," and then referenced his age, his unemployment status at the time of the crime, his prior status of being homeless and how he was in a stable residence at a shelter at the time of his arrest months earlier. (Minutes at page 18-19). Justice Clancy considered relator's prior parole and probation violations as factors relevant to his risk of flight. And, she specifically considered and rejected petitioner's proposal to have relator monitored in a homeless shelter by an agency that was not present in the courtroom.
Justice Clancy next specifically referenced "the nature of the charges facing the defendant." Relator argued the People had a weak case and that he had a viable, meritorious claim of self-defense. Justice Clancy stated she had reviewed the minutes before the grand jury, and that "it certainly appears that there's serious physical injury and the use of a weapon," (Minutes at page 18). Relator had testified before the grand jury and apparently denied causing such injury. Once again, Justice Clancy weighed and considered this factor in determining whether she would be setting bail.
Petitioner argues that Justice Clancy was required, as a matter of law, to set bail in an amount that was no higher than what petitioner told the judge defendant's family could post. The problem with this often made argument is that it takes what the legislature designated as one factor for all judges to consider in making a discretionary determination and claims not only that it is the only factor that matters when cash bail is set, but that the cash bail must be set in a specific amount. Petitioner makes the same argument in terms of the CJA recommendation in this matter, which was to release relator based on their formula. Ruling that a judge must release a defendant when CJA recommends release, or that in no case can the cash bail amount be set anywhere beyond the financial reach of a defendant, would turn a discretionary ruling to be made on a case-by-case basis into a mandatory direction that would deny every judge to exercise the discretion required in these often-complex scenarios. The statute says no such thing.
CPL 510.30(1) provides that the "court must, on the basis of available information, consider and take into account information about the principal that is relevant to the principal's return to court, including . .. (f) if monetary bail is authorized ... the principal's individual financial situation [and] the principal's ability to post bail without undue hardship as well as his or her ability to obtain a secured, unsecured, or partially secured bond." Justice Clancy did exactly that. She did "consider and take into account" the family's "individual financial situation." In doing so, Justice Clancy said that, while her job was not to review the prior bail in the manner of a writ, that she independently believed the monetary bail was "too high." She did not only reduce the cash bail alternative, but cut in half the insurance company bail bond and the partially secured bail bond alternatives, which also significantly reduced the amount that had to be posted as collateral to secure relator's release via those alternative forms of bail. The amount set by Justice Clancy in her de novo ruling is in no way excessive. And Justice Clancy did not abuse her discretion when setting it in that amount in this matter.
Finally, Justice Clancy took into account the length of time defendant would be facing if convicted of this B violent felony as part of her assessment of "the charges facing the principal." CPL 510.30(1)(b). Petitioner contends, as many attorneys do during bail applications, that there is a legislative intent to be read into the current bail statutes that prohibits a judge from taking into account the amount of time a defendant will face if convicted as a flight risk factor. Justice Clancy specifically stated that she disagreed with petitioner's position. That decision stands on firm ground.
Appellate authority exists that seemingly endorses the notion that the time a confined detainee faces upon conviction is something that a judge can properly consider in ruling on a writ. In People ex. Rel. Low on behalf of Muhammed, et. al. v. Brann, the companion case to Stouahton. Petitioner Low argued that Justice Albert Lorenzo had taken into account improper factors relating to bail in denying the writ. (Brief for Petitioner dated May 21, 2020 at pages 30-32). The First Department disagreed. They held that Justice Lorenzo properly "recited the flight risk factors posed by each petitioner were they to be released and the health conditions alleged by each petitioner, and concluded in each case that there was a compelling reason articulated by the State to continue the detention. With respect to petitioner [JR], the court noted that he was on parole for sexual crimes when he was rearrested for video recording up a woman's skirt. As for petitioner [DR], the court observed that he was on parole when he failed to report to a required program, changed his address, and was rearrested for assault in denying a writ to release several relators." Matter of Stoughton, 185 A.D.3d at 522.
The point is, of course, where a person faces multiple charges for multiple crimes, they also face multiple sentences. And that is a proper "flight risk factor" for any court to consider when determining the least restrictive condition to ensure a defendant's return to court. Moreover, the legislature limited a judge's ability to fix cash bail in most cases to a list of "qualifying offenses," the vast majority of which are violent felonies for which, if a defendant is convicted, a judge must impose a prison sentence, CPL 510.10(4). Thus, the length of a sentence that can be imposed is part of the bail factor which requires the judge to consider "the charges facing the principle." CPL 510.30(1)(b).
Given all of this, this Court finds that Justice Clancy did not abuse her discretion when she set the bail in the amount of a $50,000 cash deposit, or two bond alternatives of $100,000. The collateral purportedly available to be offered by relator's family - $5,000 - may in fact be enough to satisfy a bail bondman and support the issuance of an insurance company bond. It is far less than the amount previously required to be put up as collateral on a partially secured bond. And the amount of bail is reasonable given realtor's documented risk of flight.
Petitioner's request to release relator is denied and the writ is dismissed.
So ordered.