People ex rel. Squirrell v Langley

[*1] People ex rel. Squirrell v Langley 2020 NY Slip Op 20119 Decided on May 25, 2020 Supreme Court, Putnam County Grossman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 25, 2020
Supreme Court, Putnam County

THE PEOPLE OF THE STATE OF NEW YORK, EX REL., David Squirrell, Esq., on behalf of Edward Jackman, Adam Latham, Martiliano Ramos-Miguel, Orlando Martinez-Morales, Nicholas Slater, Jose Ramos, David Mulligan, Dawn Rogonia and Esdras Guzman, Petitioners,

against

ROBERT L. LANGLEY, Sheriff, Putnam County, Respondent.



Index No. 500451/2020



David J. Squirrel, Esq.

Chief Attorney

Putnam County Legal Aid Society, Inc.

Attorney for Petitioners

47 Gleneida Avenue

Carmel, New York 10512

Robert V. Tendy

District Attorney, Putnam County

40 Gleneida Avenue

Carmel, New York 10512

attn: Larry Glaser, Esq.

First Assistant District Attorney

Jennifer S. Bumgarner

Putnam County Attorney

48 Gleneida Avenue

Carmel, New York 10512

attn: Conrad J. Pasquale, Esq.

Senior Deputy County Attorney


Victor G. Grossman, J.

The following papers, numbered 1 to 21 , were considered in connection with Petitioners' Order to Show Cause, seeking a Writ of Habeas Corpus, pursuant to CPLR § 7000, et. seq., and the release of the individual Petitioners,[FN1] together with such other and further relief as the Court deems appropriate and equitable.PAPERSNUMBERED

Order to Show Cause/Affirmation/Exhs. 1-71-9

Affirmation in Opposition/Memorandum of Law/Exhs. A-D10-17

Affirmation in Opposition18

Affirmation in Reply/Exhs. 8-919-21

In addition to the written submissions, on May 18, 2020, the Court heard oral argument via remote appearances. The Court also considers any statements and facts set forth during that [*2]argument.[FN2]

PETITIONERS

Petitioners are inmates at Putnam County Correctional Facility ("PCCF"). Their individual status varies from unindicted, to convicted and awaiting sentence, to sentenced. Some Petitioners are held on probation violations. They share a common concern arising from the COVID-19 pandemic; namely, a greater risk of contracting the virus by reason of their confinement in PCCF with the potential for serious illness and death should they unfortunately contract it. They claim the enhanced risk and danger of contracting the virus due to their confinement violate their due process rights under the State and Federal Constitutions and also violate the 8th Amendment proscription on cruel and unusual punishment. They posit that their release is the only appropriate remedy. The virus' random and insidious nature combined with its contagiousness in congested areas has become all too familiar.

The individual inmates, named below, have advanced particular circumstances they believe warrant their release:

Edward Jackman is 54 years old. He is being held on pre-trial bail of $7,500/15,000 bond for a misdemeanor charge of criminal contempt in the second degree (Penal Law § 215.50[3]). Although the Petition was silent to any other charges, according to People's opposition, Jackman has two additional criminal contempt charges pending, all since March 2020, arising from violations of an order of protection. Jackman, however, is not being detained on those two charges. He also has a prior conviction for manslaughter in the first degree. In 2012, Jackman was diagnosed with Chronic Obstructive Pulmonary Disorder ("COPD"). As a result of the diagnosis, he receives social security disability (SSD) payments. According to his PCCF medical records, he is being treated medically with Symbicort and an inhaler.[FN3] The Centers for Disease Control (CDC) issued guidance, stating that an underlying lung disease places an individual, like Jackman, at a higher risk for contracting a severe, and possibly fatal, form of COVID-19. He claims that he "is at a heightened vulnerability by being incarcerated pre-trial" in PCCF.

Adam Latham, who pled guilty to felony drug sale (Penal Law § 220.39, a class B felony) and bail jumping (Penal Law § 215.57, a class D felony), is remanded at PCCF, awaiting sentencing to state prison. He is 36 years old, and was diagnosed with asthma at age 12, which he manages with an inhaler. His medical history includes Prednisone to treat his asthma, and chest pains that required hospital care for his asthmatic condition. He contends that according to the CDC, his asthma places him at a high risk for contracting a serious form of COVID-19. Latham is also serving an 18-month sentence of probation in Connecticut, for which he began reporting in January 2020. If Latham is released, his wife will meet him at PCCF, and transport him to his mother's Danbury, Connecticut residence, where he can self-quarantine for a 14-day period.[FN4]

Mariliano Ramos-Miguel is 44 years old. He is detained at PCCF and agreed, in writing, [*3]to accept an offer to plead guilty to a Superior Court Information charging him with rape in the first degree (Penal Law § 130.35[1], a class B violent felony), and two counts of endangering the welfare of a child (Penal Law § 260.10[1], a class A misdemeanor), in satisfaction of charges that include incest in the third degree (Penal Law § 255.25 [2 counts]); rape in the first degree (Penal Law § 130.35 [2 counts]); attempted rape in the first degree (Penal Law § 110/130.35 [1 count]); sexual abuse by forcible compulsion in the first degree (Penal Law § 130.65[1] [3 counts]); forcible touching (Penal Law § 130.52 [3counts]); and endangering the welfare of a child (Penal Law § 260.10[1] [3 counts]). The plea offer also included an aggregate of fourteen (14) years' imprisonment. Ramos-Miguel suffers from high blood pressure, which indisputably places him at a heightened risk of contracting COVID-19, and he is being treated for it at PCCF. The arraignment court set bail at $100,000/$200,000. In addition, there is an immigration warrant that also serves to detain him. If released, Ramos-Miguel would reside with his two brothers in Brewster, New York.

In mid-April, Orlando Martinez-Morales complained to PCCF medical personnel that he was awakened by shortness of breath. He advised the medical staff that he had a history of shortness of breath that led him to borrow his sister's inhaler because he had no medical insurance. If released, he would reside with his sister in Brooklyn, New York. Martinez-Morales pled guilty to rape in the third degree (Penal Law § 130.25 [3], a class E felony), and forcible touching (Penal Law § 130.52, a class A misdemeanor). He is awaiting a promised sentence of six (6) months' shock probation on the felony, and three years' probation on the misdemeanor. It appears he is eligible for release in June 2020.

Nicholas Slater did not disclose any conditions which would create a heightened risk of contracting the virus. Instead, he fears the ravaging effects of this disease, which could linger beyond any recovery. Slater pled guilty to attempted burglary in the third degree (Penal Law § 110/140.20, a class E felony), and a violation of probation. He is awaiting a state prison sentence. Although the Petition does not identify any medical condition of concern, the opposition papers (Glasser Affirmation at ¶12; Forde Affidavit at ¶8[e]), indicate he has been diagnosed with Hepatitis-C but is asymptomatic.[FN5]

David Mulligan is 23 years old. He suffers from Type 1 diabetes and receives insulin at PCCF, delivered to the jail, in an "omnipod," by his father every 30 days.[FN6] Diabetics, such as Mulligan, are indisputably at a higher risk for severe illness from COVID-19. On December 10, 2019, based on Mulligan's admissions to two (2) violations of his misdemeanor probation sentence, the Court sentenced him to two (2) consecutive 179-day terms of imprisonment. If released, Mulligan will reside with his family in Patterson, New York. The District Attorney consents to Mulligan's application, and will not require him to complete the remainder of his sentence; however, the County Attorney will not consent.

Dawn Rogonia is 31 years old with mild asthma and Hepatitis-C. She is not being treated for Hepatitis-C at PCCF because she claims it is too expensive. However, Nurse Claire Forde's Affidavit indicates Rogonia is asymptomatic and does not require treatment. Rogonia [*4]was sentenced to two (2) concurrent terms of incarceration arising from two violations of probation. Her release date is scheduled for July 3, 2020. If released early, she would reside with her father in Jefferson Valley, New York.

Edres Enrique Guzman is 29 years old and has asthma. He is awaiting more information about his medical history. After he pled guilty to a violation of probation, the court sentenced him to state prison; however, he has not yet been transferred to a state facility.[FN7] If released, he will reside with the mother of his child.

SHERIFF LANGLEY'S RESPONSE

There is some dispute about the inmates' medical claims. Claire Forde, a Registered Nurse and the Health Services Administrator at PCCF, supervises the medical staff and treats inmates. She claims the medical conditions complained of by the inmates are controlled by medication, or of recent, and possibly convenient, disclosure, based on the medical records and medical history known to her. But she does not opine on the increased risks and potential complications affecting inmates with certain conditions. Nurse Forde states PCCF's medical department is managed by PrimeCare Medical, Inc. ("PrimeCare"), which provides medical services to correctional facilities in the Northeast. PCCF's Medical Director is Dr. Michael Nesheiwat.[FN8]

Based on the records made available to the Court, there is some concern about the quality of PrimeCare's services. For example, Morales' treatment includes entries by a Dr. Danaher, whose office is in the Town of Newfane in Niagara County, New York, and by a Dr. Braselman, whose office is in Elmira, New York. In addition, Mulligan's record contains entries referring to a Dr. Rollings in Camp Hill, Pennsylvania, who does not appear to be licensed to practice medicine in the State of New York. It is unclear whether any of these physicians actually examined the patients they treated. Simply put, the Court has concerns about physicians who treat patients without examining them, or who are not licensed to do so, and these are factors to be weighed in the overall quality of care provided to the inmates.

In response to the increased risks, Sheriff Langley commendably has taken certain steps to protect the inmates' health. Lieutenant Michael Villani, the Facility Training Coordinator, attests that as of May 7, 2020, PCCF is less than 25% full; there are 29 inmates in the facility, which can hold a capacity of 128 inmates.

At the time of this Decision and Order, on admission, an inmate is separated from the general population for fourteen (14) days, and then is transferred to the general population only upon being medically cleared. However, Lieutenant Villani's statement that medical clearance "includes being completely asymptomatic of COVID-19 related symptoms" does not eliminate [*5]the possibility of the virus incubating in an inmate even if symptoms are not displayed €" a common aspect of COVID-19. Inmates are assigned to individual private cells. Presently, they are given their meals in the privacy of their cells; there is no communal dining room at this time. Kitchen staff has been limited as well. To date, no inmate has been diagnosed with COVID-19. A correction officer/staff member previously contracted the illness and possibly brought it into the facility. The individual was sent home for fourteen (14) days, and did not return to work until they were medically cleared in mid-April.

PCCF adopted a Pandemic Response and Influenza Plan ("Plan"), effective February 28, 2020. Although it did not explicitly reference the COVID-19 virus, the Plan addressed many of the issues raised by the spread of COVID-19, and recognized:

outbreaks of the Flu and other illnesses in closed environments (i.e. jails, prisons, schools, nursing homes, etc.) can be explosive in nature with high attack rates. Many incarcerated individuals have underlying medical conditions and are at increased risk to become sick due to poor health habits, compromised immune systems and poor hygiene habits.

(Exhibit C-1 at 2). The Plan provided for: screening on admission; reporting requirements; isolation upon presentation of symptoms or complaints, including confinement in one's cell; segregation of inmates; limitation or suspension of visitation; use of masks; and suspension of recreation programs, work programs, religious services, etc. after consultation with the Sheriff or Undersheriff.

The Plan also stated that confirmed or suspected infected inmates, at a minimum, will be required to wear masks and will be segregated from healthy inmates. Scheduling of court appearances and transportation shall be postponed if possible, and staff will be provided with protective equipment. Transfer to a medical center or hospital should be provided when required, including on discharge, and the Health Department should be notified of a contagious illness other than routine flu.

Kitchen surfaces and utensils are required to be sanitized at least daily or after use, and the use of styrofoam trays should be considered. Provisions were made for sanitizing surfaces, including floors, walls, doors, knobs, tables and chairs, bathrooms , locker rooms, and equipment by inmate work crews.

On April 28, 2020, the Plan was amended specifically to address "COVID-19 Prevention, Detection and Control." The Amendments include: the use of hand sanitizers; temperature readings; COVID-19 screening forms on entry into PCCF; and a prohibition on entry for anyone showing symptoms or a temperature above 100 degrees, or having been in close contact with someone suspected of having COVID-19. In addition, inmate visits, legal visits, and programs were suspended.

New detainees shall be screened at the facility garage before entering the facility and will be "issued a 'surgical type' mask to be worn immediately and any time out of their cell until 14 days" (Exhibit C-2 at 2). The lobby area will be cleaned and disinfected daily. Kitchen staff and inmate workers shall wear a "surgical type" mask while in the kitchen, and the kitchen area "will be cleaned and disinfected periodically more often than typically" (Exhibit C-2 at 2), but this frequency is not defined. There appears to be a limitation on kitchen staff, but the wording is [*6]unclear. Medically, the Amendment provides for the quarantine of persons with suspected COVID-19 infection, the wearing of surgical masks, and taking daily vital signs. Isolation and close monitoring will follow any positive testing, and transfer to Putnam Hospital will occur if warranted. New detainees will be monitored for 14 days, which may be extended, and will require medical clearance before a housing assignment. "Social distancing" shall be maintained and enforced in communal areas such as television room, common table areas, exercise yards, and lining up for various services. Masks for inmates are mandatory in some areas of the facility, and discretionary in others. Housing units are disinfected twice daily; inmate temperature will be taken nightly, and an inmate will be removed from the population if the temperature is above 100 degrees. Medically-isolated inmates are designated to a specific housing unit and will be provided with disposable paper products to utilize when eating. Inmate clothing will be laundered separately, or disposed of daily. Corrections officers must report any exposures, and they may use a surgical-type mask, but they must use an N95 mask in certain situations. Staff shift briefing shall occur in the booking room to promote distancing. A Shift Supervisor may refer a corrections officer to medical screening or send them home based on the presence of symptoms. Officers' workstations are to be disinfected at the beginning, and end, of each shift, and shared equipment will be disinfected periodically during each shift. Gloves will be used while checking visitors, and eye protection will be worn when shields are unavailable.

Clearly, the Sheriff's actions reflect a serious attempt to meet his inmates' needs. The ability to test is missing from the procedures, but that ability has been compromised by national policy and planning failures, rather than the Sheriff's deliberate indifference. In addition, PCCF is neither Rikers Island nor the federal Metropolitan Detention Center in Brooklyn (see NYLJ, May 14,2020). With a smaller population and the ability to maintain physical distancing in individual cells, PCCF cannot be compared. The procedures designed to clean, disinfect, and isolate appear to be effective €" there is no proof to the contrary. Instead, there is a general, rational fear of the unknown consequences of COVID-19. Originally, those consequences were believed to affect lung functions leading to pneumonia-like symptoms, but now, there are indications of stroke-like symptoms in younger adults, and horribly, other fatal impacts on children as young as 3 years old. The answer to that fear is to act based on facts €" both known and newly-known.

ANALYSIS

The issues in this action are: whether the medical issues faced by Petitioners are adequately met by the services offered by PCCF's personnel; whether Petitioners are to be released from custody as a remedy; or whether another remedy might be appropriate by converting the matter to an Article 78 proceeding (see CPLR § 103[c]). For analytical purposes, some Petitioners are viewed under the due process requirements of the New York State and United States Constitutions, while others are viewed under the 8th Amendment proscription on cruel and unusual punishment. Finally, another question to be resolved is in the event release is ordered, what conditions, if any, may the court impose.Prison inmates' health is the responsibility of governments who incarcerate them. Indeed, the United States Constitution requires the government to provide effective medical care for inmates [*7](Brown v Plata, 563 US 493, 508-09 [2011]; Farmer v Brennan, 511 US 825, 832-33 [1994]; Estelle v Gamble, 429 US 97 [1976]). These decisions involved convicted prisoners, and were decided under the 8th Amendment. The due process protections of the 5th and 14th Amendments to the United States Constitution and Article 1, Section 6 of the New York State Constitution provide comparable protection to pretrial inmates (see e.g. Kingsley v Hendrickson, 576 US 389 [2015]; Cooper v Morin, 49 NY2d 69 [1979]). "The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common law view that ‘(i)t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself'" (Estelle v Gamble, supra at 103-104, quoting Spicer v Williamson, 191 NC 487, 490 [1926]).To successfully invoke the federal due process clause, a petitioner may establish that the government's actions impose a serious, medically-threatening condition on inmates. The petitioner alternatively may show that the government failed to act with reasonable care to mitigate a risk created by a seriously-threatening prison condition, even though the responsible authorities knew, or should have known, that the condition posed an excessive risk to the health or safety of the inmates (Helling v McKinney, 509 US 25, 31-32 [1993]).

New York's due process test is simpler. The court must balance "the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement" (Cooper v Morin, supra at 79). In weighing that benefit, the burden of proof remains on the inmate (Matter of Ronson v Commissioner of Correction, State of NY, 112 AD2d 488 [3d Dept 1985]). The use of protocols, as here, are a factor to be weighed (De La Rosa v State of New York, 173 Misc 2d 1007, 1010 [Ct Cl 1997). If the government cannot satisfy the due process requirement, the court must accord a remedy €" including, where appropriate, release from prison (Brown v Plata, supra at 511). Courts "must not shrink from their obligation to enforce the constitutional rights of all persons, including prisoners. Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration" (id. [internal quotation marks and citations omitted]). Notably, Brown approved an order requiring the release of numerous convicted California prisoners unless the state quickly relieved long-standing prison overcrowding that, inter alia, threatened the inmates' health.

In New York, the writ of habeas corpus is one method to implement a remedy arising from a lack of due process that renders the detention illegal. In People ex.rel. Brown v.Johnston (9 NY2d 482, 485-486 [1961] [internal citations omitted]), Judge Berke, writing for the Court of Appeals, stated (emphasis added):

An individual, once validly convicted and placed under the jurisdiction of the Department of Correction (Correction Law, § 6), is not to be divested of all rights and unalterably abandoned and forgotten by the remainder of society. If these situations were placed without the ambit of the writ's protection, we would thereby encourage the unrestricted, arbitrary and unlawful treatment of prisoners, and eventually discourage prisoners from co-operating in their rehabilitation..... We cannot merely by virtue of the valid judgment sanction the subsequent abrogation of lawful process...To implement this duty and secure the relief due the prisoner, we can and should recognize that "(c)ourts have always asserted and exercised authority which, though perhaps not [*8]expressly established by statute, is 'based upon the inherent right and duty of the courts to protect the citizen in his constitutional prerogatives and to prevent oppression or persecution.'" (People v. Gersewitz, 294 NY 163, 167, 61 N.E.2d 427, 429; People ex rel. Saia v. Martin, 289 NY 471, 46 N.E.2d 890)....Although the availability of the writ of habeas corpus for this purpose may be a source of administrative inconvenience, it is not justification for a denial. It is well here to repeat that "the rights of the best of men are secure only as the rights of the vilest and most abhorrent are protected." (People v. Gitlow, 234 NY 132, 158, 136 N.E. 317, 327).

Here, there is no doubt that PCCF officials are aware of the COVID-19 threat. There can be no doubt that the presence of a communicable disease in a prison can constitute a serious, medically-threatening condition. COVID-19 is at large in New York State and the entire nation, although areas of congested population seem to be the most vulnerable. The current epidemic poses a deadly threat to inmates, and its potential presence at PCCF equates to a potentially "unsafe, life-threatening condition," endangering "reasonable safety" (Helling v McKinney, 509 U.S., supra at 33). The word "potentially" is emphasized because the virus chooses its victims randomly, but appears to attack those who are vulnerable by virtue of their age, certain existing conditions, physical environment and their overall health. The jail environment heightens the potential for the spread of COVID-19, but to date, no inmate has contracted COVID-19 at PCCF. The word "potentially" is also used to denote the absence of medical authority to establish the degree of susceptibility among each Petitioner. Under these circumstances, and without medical training, the Court must make some decisions based on medical assessments from the information contained in the record. Neither side has offered medical authority to address the issues. The Court takes judicial notice of CDC advisories and guidelines, and relies upon them. In some circumstances, and in the absence of a viable alternative, a court may have no choice but to order release (Brown v Plata, 563 US, supra at 511). There is neither a bright-line test, nor any criteria, that guides a balance between a medical condition and public safety in the event of a release.

An inmate's age and physical condition may render him, or her, more susceptible to the virus. Corrections officials across New York State have acknowledged this fact. On March 21, 2020, the New York City Board of Correction ("NYCBOC") issued an advisory letter calling for the release of prisoners over the age of 50 who have certain high risk conditions. Last month, the New York State Department of Corrections and Community Supervision ("DOCCS") announced it was releasing prisoners over the age of 55 with less than three (3) months left on their sentence. More recently, DOCCS expanded the release to all inmates with less than 90 days remaining on their sentence, except for those convicted of sex offenses or violent felonies (see NYLJ, May 11, 2020 at 1). These actions suggest not only the inmates' heightened exposure in confined facilities, but also the difficulty, if not inability, of providing adequate treatment, especially when the moment of contraction is unknown. Yet those determinations are administrative, and do not address other alternatives or the detention's legality.

Other courts have recognized the unprecedented threat created by the COVID-19 virus to incarcerated individuals, but without uniformity (see People ex rel. Stoughton v Brann, 2020 WL 1679209 [Sup Ct, New York County, April 6, 2020]; People ex rel. Gregor v Reynolds, 2020 WL 1910116 [Sup Ct, Essex County, April 17, 2020]; People ex rel. Coleman v Brann, 2020 WL 1941972 [Sup Ct, Bronx County, April 21, 2020]; United States v Stephens, 2020 WL 1295155 [SD [*9]NY, March. 19, 2020, No. 15-CR-95 (AJN)]; Avendano Hernandez v Decker, 2020 WL 1547459 [SD NY, March 31, 2020, No. 20-CV-1589 (JPO)]; Basank v Decker, 2020 WL 1481503 [SD NY, March 26,2020, No. 20 CV- 2518 (AT)]; Barbecho v Decker, et al, 2020 WL 1876328 [SD NY, April 15, 2020, No. 20-CV-2821 (AJN)]; United States v Korn, 2020 WL 1808213 [WD NY, April 9, 2020, No. 11-CR-384S (WMS)]). The list of cases cited is far from complete as new decisions appear daily (see e.g. People ex rel. Ferro v Brann, 2020 WL 2462237 [2d Dept May 14, 2020]). The generalized risk posed by the virus, by itself, has not yet been found to be a sufficient basis upon which to release incarcerated persons (see United States v Hamilton, 2020 WL 1323036 at *2 [ED NY, March 20, 2020, No. 19-CR-54-01 (NGG)]). Moreover, reliance on federal decisions is misplaced because the federal system includes a specific statutory scheme for "compassionate release," which is absent from the New York statutes (see 18 USC § 3582, et seq; United States v Ebbers, 2020 WL 91399 [SD NY, January 8, 2020, No. 02-CR-1144-3 (VEC)]; United States v Roberts, 2020 WL 1700032 [SD NY, April 8, 2020, No. 18-CR-528-5 (JMF)]; United States v Ng Lap Seng, 2020 WL 2301202 [SD NY, May 8, 2020, No. 15-CR-706 (VSB)]; US v Scparta, 2020 WL 1910481 [SD NY, April 20, 2020, No. 18-CR-578 (AJN)].

Here, the Sheriff is aware of the serious risk of harm posed by the COVID-19 virus to inmates. The granting of a writ of habeas corpus may be a remedy, but it is not simply one for the asking. An entitlement to the writ must be established in the form of a due process violation or other illegal detention. While the Court is concerned that even the Sheriff's best efforts might leave an inmate in a vulnerable position, the remedy is far from automatic.

Petitioners allege that the issue is one of first impression, but that is not quite correct. It is true that the unknown about COVID-19 generates a level of fear and concern that is different from other illnesses; that its means of attack and varied victims add to those fears, and that information and knowledge about it changes daily, as do the number of victims. These same concerns were heard by Justice Rosenblatt in connection with an issue of AIDS at the Downstate Correctional Facility (LaRocca v Dalsheim, 120 Misc 2d 697 (Sup. Ct., Dutchess County 1983). LaRocca v Dalsheim was an Article 78 proceeding seeking injunctive relief, including the removal of all AIDS patients from the prison hospital, at a time when the scourge of AIDS was emerging. Justice Rosenblatt initially recognized the State's obligation to provide a safe and humane place of confinement for its inmates, including measures to protect inmates from AIDS, citing Sections 23(2) and 70(2) of the Correction Law. Notably, the inmates were effectively proceeding against other inmates because they claimed, the State had not provided adequate and proper facilities, thereby increasing the AIDS threat in the prison population. Justice Rosenblatt's explanation of the (then) existing science was combined with the recognition that "[f]ear remains and rumors persist. Much of the apprehensiveness exists because no one is completely sure how AIDS is spread, and no one has conclusive answers...[the existing uncertain science] leave[s] room for discomfort to an unsophisticated prisoner who is ordered to clean a vacated AIDS room upon the vague assurance that, in all likelihood, he will not contact AIDS" (id. at 702-703). He also described the precautions taken at the hospital and the protections employed which mirrored the then-existing guidelines for Hepatitis-B patients. In addressing the potential for a remedy, Justice Rosenblatt observed that the petitioners did not set forth any acts of commission, or omission, that would "require some judicial override" (id. at 709).

Here, the Sheriff has set forth the practices, procedures and guidelines employed to protect the inmates at PCCF. An act of omission, as well as an act of commission, could constitute a basis [*10]for finding a lack of due process, but no act of omission is identified in this case, with the possible exception of not providing an "omnipod" for a diabetic inmate [FN9] . It is clear that no one wants to identify an act of omission after the fact, and after harm has occurred, but more is needed than a general fear. While LaRocca v Dalsheim involved an Article 78 proceeding, the circumstances of a COVID-19 illness might demand more swift action in the form of an application for a writ of habeas corpus, or mandamus, as the medical facts and treatment issues might create a sudden denial of due process, and medical emergency, notwithstanding an absence of "deliberate indifference" to an inmate's needs.

There is an incongruity in the treatment here under the law. DOCCS and NYCBOC currently permit a class of inmates to be released based on certain medical risk factors. The Court does not have this power. The District Attorney has consented to the release of one such inmate, due to his medical condition, but the County Attorney argues that courts do not have the authority to do so because the detention is not illegal. If the Court has the power to release an inmate due to his medical condition, then it has the power to release more than one inmate for medical reasons. Conversely, if the Court lacks the power to release an inmate for medical reasons that do not rise to illegality, then no inmate can be released.The terms "illegal" or "illegality" are broad, and, in the context of an application for a writ of habeas corpus, are not limited to a statute's dictates. Such a limitation does not allow for the consideration or evolution of concepts such as due process. The Legislature, by codifying the writ in Article 70 of the CPLR, recognized the judicial evolution:

that we have, by the slow process of decisional accretion, made increasing use of ‘one of the hallmarks of the writ * * * its great flexibility and vague scope' (Third Preliminary Report of Advisory Committee on Practice and Procedure (NY Legis. Doc., 1959, No. 17), p. 49; see Paulsen, Post-Conviction Remedies in New York, 1959 Report of NY Law Rev. Comm. (NY Legis. Doc., 1959, No. 66[L]), p. 453 et. seq.).

(People ex rel. Keitt v McMann, 18 NY2d 257, 263 [1966]).

The Court of Appeals clearly recognized the evolutionary nature of the writ:

We have intimated that to adhere to the rigidities of traditional practice and procedure would be contrary to the spirit and purposes of the writ (see Matter of Morhous v. New York Supreme Ct., 293 NY 131, 139-140). While cases may arise where the right to invoke habeas corpus may take precedence over ‘procedural orderliness and conformity' (People v. Schildhaus, 8 N Y 2d 33, 36), we are not holding that habeas corpus is either the only or the preferred means of vindicating fundamental constitutional or statutory rights (e.g., People v. Huntley, 18 NY2d 72, 76-77). Departure from traditional orderly proceedings, such as appeal, should be permitted only when dictated, as here, by reason of practicality and necessity.

(id. at 262). Thirteen years later, the Court of Appeals in Cooper v Morin recognized "the [*11]requirements of due process are not static; they vary with the elements of the ambience in which they arise" (49 NY2d 69, 79 [1979], quoting Wilkinson v Skinner, 34 NY2d 53, 58 [1974]).

On the basis of the facts here, the Court cannot conclude that a violation of Petitioners' due process or 8th Amendment rights exists. The Court might very well conclude differently on a different set of facts. Petitioners' fear of the COVID-19 virus is not a basis for issuing a writ of habeas corpus. The Court is aware of the ravages of the virus, and it is sympathetic to Petitioners' concerns. But more is needed than a potential risk to justify the invocation of the writ, notwithstanding its evolution and role in defining modern concepts of due process. The absence of authoritative medical guidance, combined with the rapidly-changing breadth of knowledge about COVID-19, and the specific potential impacts on these Petitioners, complicate the decisions to be made. PCCF's reduced population, combined with the additional measures taken by the Sheriff and PCCF personnel, have served to limit the risk of transmission of COVID-19. It is expected the Sheriff will continue to develop practices and procedures to keep pace with the growing knowledge of COVID-19. Petitioners are free to make an appropriate application, either for a writ of habeas corpus or other relief, as they deem necessary, should there arise a further basis for relief. Nevertheless, the risk to Petitioners still remains, just as it remains outside PCCF's walls. Petitioners argue that if released, they could manage the risk €" something that they claim they cannot do so while incarcerated. This argument is neither persuasive nor factually supported. Moreover, it is not the basis upon which a writ could be issued because it does not establish either a violation of due process or a deliberate indifference to Petitioners' welfare. The Court also notes that some of the Petitioners will be released within a matter of weeks as their sentences are completed, and this Court neither has the power to alter, amend, or reduce a sentence, nor can it provide an early release as DOCCS has done pursuant to the Governor's direction. The power to issue a writ of habeas corpus is great, but it does not exist without facts to support it.

Accordingly, it is hereby

ORDERED that the Petition is dismissed

The foregoing constitutes the Decision and Order of the Court.

Dated:Carmel, New York

__________________________________

HON. VICTOR G. GROSSMAN, J.S.C.

David J. Squirrel, Esq.

Chief Attorney

Putnam County Legal Aid Society, Inc.

Attorney for Petitioners

47 Gleneida Avenue

Carmel, New York 10512

Robert V. Tendy

District Attorney, Putnam County

40 Gleneida Avenue

Carmel, New York 10512

attn: Larry Glaser, Esq.

First Assistant District Attorney

Jennifer S. Bumgarner

Putnam County Attorney

48 Gleneida Avenue

Carmel, New York 10512

attn: Conrad J. Pasquale, Esq.

Senior Deputy County Attorney

Footnotes

Footnote 1:Petitioner David Squirrell is the Chief Attorney of the Putnam County Legal Aid Society, Inc. Subsequent to the filing of the Petition, Petitioner Jose Ramos withdrew his application.

Footnote 2:The Court relied upon its notes from that argument.

Footnote 3:It is noted that the medical claims of the inmates, collectively, are self-reported.

Footnote 4:Latham's mother and her boyfriend occupy this Connecticut residence.

Footnote 5:Hepatitis-C is a liver condition that compromises the immune system.

Footnote 6:An omnipod is a device that administers insulin.

Footnote 7:Insofar as Guzman has been sentenced to the custody of the DOCCS, that office, or the Attorney General, should have an opportunity to be heard before the application is determined.

Footnote 8:Dr. Nesheiwat is the Putnam County Commissioner of Health/Public Health Director. He also may be a PrimeCare employee. If so, his position with PrimeCare may be in conflict with Local Law No. 18 of 2011, which amended Article 10 of the Putnam County Charter and Section 55-3(A) of the Code of Putnam County.

Footnote 9:Mulligan's father's delivery of an omnipod to PCCF every 30 days to assist Mulligan in managing his diabetes, as described above, does not relieve the Sheriff of his obligation to provide an insulin delivery system as part of Mulligan's care.