People ex rel. Williams v Brann

[*1] People ex rel. Williams v Brann 2020 NY Slip Op 50705(U) Decided on June 16, 2020 Supreme Court, Bronx County Hornstein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 16, 2020
Supreme Court, Bronx County

The People of the State of New York ex rel. Ashley M. Williams, Esq., on behalf of Ryan Lawrence, Petitioner,

against

Cynthia Brann, Commissioner of Corrections, City of New York, Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondents.



400147-2020
Steven Hornstein, J.

On or about May 26, 2020, Ryan Lawrence (hereinafter "the petitioner"), an inmate held on a parole warrant at the George R. Vierno Center ("GRVC"), filed a verified petition for a writ of habeas corpus seeking immediate release on the grounds that continuing to hold him on a parole warrant constituted deliberate indifference to the risk of serious medical harm in violation of the Fourteenth Amendment and New York State's constitutional right to due process.

On June 1, 2020, a Skype conference was held to consider the petitioner's writ. Ashley M. Williams, Esq., appearing on behalf of the petitioner, waived his appearance. Assistant Attorney General Rene Hertzog, Esq., appearing on behalf of the New York State Office of the Attorney General, opposed the writ. Senior Assistant Corporation Counsel Andrew Vigliotta, Esq., prior to the conference, transmitted an email to the Court providing, in pertinent part:

I have been assigned to this matter for the purpose of providing the Court with materials relating to conditions within DOC facilities and access to medical care on a daily basis in each facility . . . .The City takes no position on the merits of this matter, except that it opposes any release premised on a finding that DOC is deliberately indifferent or that the conditions of confinement violate due process. DOC is appearing on papers in this matter, and...I am available to the Court . . . .

The Court, upon consideration of counsel's arguments and the submissions of counsel, makes the following findings:

Background and Procedural History

As reported in the Parole Department's Violation of Release Report, the petitioner's criminal history dates back to 2009 when the petitioner, at the age of fourteen, received a twelve month probationary sentence on youthful offender adjudication for a robbery in the second [*2]degree charge.

At the age of seventeen, the petitioner, acting in concert with another, engaged in a gunpoint robbery. Approximately one year later, the petitioner pled guilty to robbery in the second degree and was sentenced to five and half years jail and five years post-release supervision. The plea covered several other robbery charges and ran concurrently with a one to three year sentence the petitioner received on a youthful offender adjudication for an additional robbery.

In 2016, at the age of twenty-one, the petitioner was released to parole with a maximum expiration date of July 27, 2021. Prior to the release, the petitioner signed a condition of release form specifying, inter alia, that he would notify his Parole Officer of any and all law enforcement contact; lead a law-abiding life; refrain from illicit controlled substance possession and use; submit to substance abuse testing; participate in a substance abuse treatment program; and not associate or communicate with four specified victims in accordance with judicially issued final orders of protection.

The petitioner failed to regularly attend a designated drug treatment program; he tested positive for K-2; twice, in January of 2019, he allegedly threatened to kill a witness to prevent her from testifying in a criminal case pending in Kings County and on March 19, 2020, he was arrested for criminal mischief and related charges. A report prepared by Parole with respect to that arrest provided:

. . . subject . . . intentionally and recklessly threw a cash register, printer and credit card machine at a Popeye's restaurant. The subject continued to threaten the victim with telling him to 'come outside and see what's going to happen,' causing him to fear for his safety. Additionally, he aggressive resisted being arrested by NYPD by flailing his arms . . . . Subsequent to his arrest, he failed to notify the Parole Office of the law enforcement contact and failed to provide factual information when asked if he in fact had police contact.Alternatives are not appropriate at this time . . . .

With respect to the Popeye's incident, the petitioner reports that the matter was resolved with a disorderly conduct violation. As to the two alleged intimidation incidents, the petitioner asserts that the complainant is uncooperative. The petitioner, notwithstanding his resolution of his March arrest matter, remains in prison as a result of a warrant filed by Parole.

The petitioner, on April 22, 2020, in accordance with DOC and CHS protocols, was medically screened upon admission to the New York City prison system. The petitioner, while denying a cough, respiratory problem, fever or sore throat, reported he had been unable to smell or taste anything for the past twelve days. Medical personnel ordered COVID-19 testing and conducted a physical examination. The petitioner's blood pressure was slightly elevated at 126/80 mm Hg. The attending physician noted that the petitioner was "well-developed"; "well-nourished"; in no acute or respiratory distress and had clear lungs. The petitioner, again in accordance with protocols, was sent to EMTC for further evaluation.

Later that same day, the petitioner was screened at EMTC by medical personnel. His blood pressure was again somewhat elevated at 134/85 mm Hg. During screening, the personnel noted he did not present with a fever, cough or shortness of breath. Accordingly, they noted the patient "does not present with the [COVID-19] symptoms and is fit to attend to court . . ."

On April 23, 2020, during daily rounds at EMTC, medical personnel visited with the petitioner and noted that, other than the petitioner's report that he was unable to smell or taste for [*3]the past 12 days, that his respiration was unlabored and that he was otherwise asymptomatic.

On April 26, 2020, the COVID-19 testing results were received. The test indicated that the virus had not been detected and a referral order, dated April 27, 2020, rendered a diagnosis of elevated blood pressure without hypertension. Sometime thereafter, again in accordance with prison protocols, the petitioner was transferred to general population at GRVC.

In a two page CHS printout, the petitioner directed the Court's attention to portions of the printout that referred to the petitioner's elevated blood pressure without hypertension and mild, intermittent uncomplicated asthma. The petitioner claims that the elevated blood pressure and asthma render him particularly vulnerable to serious illness or death if infected by COVID-19. Notably, unlike other emergency writs considered by this Court, the petitioner did not submit medical documentation confirming that either an "elevated" blood pressure or "mild, intermittent, uncomplicated" asthma places an otherwise healthy twenty-five year old at greater risk of serious physical injury or death upon contracting the virus.

Petitioner, in further support of his release, pointed out that, as of the filing of his petition, three inmates had died in City jails and that while New York City was the epicenter of the coronavirus, Riker's Island was the "epicenter of the epicenter." He claims that prison overcrowding and shortages in hygienic, cleaning and protective equipment render release the only effective means to protect highly vulnerable inmates from serious illness or death. The Petitioner writes:

Respondent DOCCS is fully aware of the risks posed to Mr. Lawrence while being held in custody on a violation of parole, and are aware of his health concerns and as well as Mr. Lawrence being housed in quarantined housing when he first arrived. Despite being aware of this risk, Respondent has acted recklessly indifferent to the risks Mr. Lawrence faces in custody being held solely in custody on a parole violation. Given Mr. Lawrence's health concerns, and the lack of care being shown to him while in DOCand DOCCS custody thus far, such behavior does constitute deliberate indifference . . . and mandates release.

The respondent, referencing governmental websites, points out that there has been a dramatic decrease in the New York City jail population in recent months. ACC Vigliotta writes, in pertinent part:

DOC's reasonable conduct is shown by the quickly decreasing population of people in DOC custody. The daily census data . . . reflects the City's efforts—together with the necessary involvement and cooperation of the New York Attorney General's Office and the five District Attorney's Offices . . . to release vulnerable inmates from custody. These efforts began well before the Petition in this matter was filed.This aggressive and comprehensive review process . . . enabled DOC to dramatically reduce the inmate population, both to protect the more medically vulnerable people incustody and to create more space permitting those remaining in custody to practice social distancing . . . .Notably, the current jail population represents a census at a level not seen since 1946.

Assistant Corporation Counsel Vigliotta's assertions are borne out by statistics from the New York City Board of Correction ("BOC"), which state: "[f]rom March 16th to June 5th 2020, the total DOC census has declined by 1,565, or 28%" and that, as of June 5th, the City's inmate population stands at 3992. The Board also reported that from March 16th to June 5th, 2020, the [*4]percentage of people held on a technical parole violation decreased from 13% to 4% .[FN1]

Although the respondent did not provide information as to the mechanism by which the number of inmates held on technical parole violations decreased from 13% to 4%, such information was referred to in a decision written by Judge Fabrizzio in People ex rel. Curtis v. Brann, 2020 NY Misc LEXIS 1595 (Sup Ct, Bronx County 2020). The Court wrote:

What is startling . . . is the revelation that DOCCS had 'conducted an individualized review of [parolees held on] technical violations and cancelled the delinquency of any warrant where an individual had adequate housing available and the release of an individual would not present an undue risk to the public safety' in response to the COVID-19 pandemic.

The respondent's reference to the District Attorney Offices' involvement in the release of vulnerable inmates was also referenced by the petitioner in his petition. On March 18, 2020, the five New York City District Attorney Offices, in accordance with recommendations made by the New York City BOC, endorsed a plan to identify and release people who were "elderly" or "other populations that the Center for Disease Control ("CDC") had classified as vulnerable (those with asthma, cancer, heart disease, lung disease or diabetes). The plan, entitled the "Joint Statement From Elected Prosecutors on COVID-19 and Addressing the Rights and Needs of Those in Custody" provided, in pertinent part:

First and foremost, we urge local officials to stop admitting people to jail absent a serious risk to the physical safety of the community. Policymakers, prosecutors and criminal justice leaders should also take steps to dramatically reduce detention and the incarcerated population. To that end, we believe that elected prosecutors should work with public health officials and other leaders in the communities to implement and advocate for the following refort:• Adopt cite and release policies for offenses which pose no immediate physical threat to the community, including simple possession of controlled substances.• Release all individuals who are being detained solely because they can't afford cash bail, unless they pose a serious risk to public safety.• Reduce the prison population to minimize sharing of cells and ensure that there are sufficient medical quarantine, beds, and enough staff, to promote the health and safety of staff, those incarcerated, and visitors.• Identify and release the follow people immediately, unless doing so would pose a serious risk to the physical safety of the community;• Individuals who are elderly;• Populations that the CDC has classified as vulnerable (those with asthma, cancer, heart disease and diabetes);• People in local jails who are within 6 months of completing their sentence; and• People incarcerated due to technical violations of probation and parole.• Put in place procedures and advocate for reforms that enable past lengthy sentences to be revisited and support release for those individuals who can safety return to the community.

The respondent also took issue with the petitioner's assertion that the rate of infection in [*5]DOC facilities far exceeded that of the general public. The respondent argues:

[Petitioner's] assumption is predicated on an apples-to-oranges comparison between an inmate population that receives more freqent medical evaluation to identify and treat COVID-like symptoms, and the general public, which . . . is only likely to obtain medical attention or testing when symptoms are severe. Petitioner's attempt to compare rates of infection between the closely scrutinized inmate population and the public at largeis speculative and unreliable as an indicator of relative rates of COVID-19 infection in those two populations.

The respondent has also submitted several affidavits from personnel employed by DOC and CHS. Patricia Feeney, the Deputy Commissioner of Quality Assurance and Integrity at DOC, and Richard Bush, the Senior Correctional Institute's Administrator for Health Affairs, in their affidavits, outlined the extensive practices and policies implemented by the DOC to ensure that the rules mandated by regulatory agencies, such as the Center for Disease Control ("CDC") and the NYC Department of Health ("DOC") and their own internal policies were complied with. Dr. Patricia Yang, a Vice President for Correctional Health Services ("CHS"), explained in her affidavit that in early 2020, CHS realized the threat posed by the Coronavirus to the City's jail population and that in preparation for the threat, CHS took "aggressive steps to reduce the likelihood of transmission and exposure that reflected the uniqueness" of the correctional environment. Her affidavit, like those of Deputy Commissioner Feeney and Administrator Bush, set out the extensive practices, procedures and protocols that had been developed and implemented to safeguard the prison population.

Deputy Commissioner Feeney writes:

. . . DOC has implemented the containment and control of transmission guidelines recommended by CDC and DOHMH and has communicated these guidelines to staff and persons in custody . . .Social distancing strategies have also been employed which include: increasing distances between persons in custody, encouraging social distancing . . . The capacity of dorm units have been reduced to allow for greater space between each person in custody . . . The Department has also suspended in person visitation . . . and has developed remote alternatives where possible . . . .. . . DOC's policy is to provide every individual in custody with their own bar of soap and access to cleaning supplies . . . sanitation work details are regularly assigned to sanitize the facilities...the required cleaning and sanitizing procedures are followed utilizing the Environmental Protection Agency's approved disinfectant . . . .Soap is placed in the bathrooms of the housing areas, and hand soap is allowed in each person's individual cell...any individual may request additional soap from the housing area officer...DOC implemented a quality assurance process that...includes: conducting daily inspections followed up with quality assurance measures . . . .. . . DOC implemented a process for facility tours . . . to regularly inspect housing areas . . .DOC is continuing its practice of tracking complaints concerning any necessary sanitation issues . . .DOC maintains regular contact with Correctional Health Services ("CHS") . . . to monitor at-risk individuals in the Department's care . . .

In an update to Deputy Commissioner Feeney's affidavit, dated April 24, 2020, she writes that all staff are required to wear face masks and must have gloves at all times; that masks have [*6]been made available and distributed to all persons in custody; that social distancing measures have been upgraded and that occupancy has been limited in the dayrooms and in the bathroom/shower areas; and that each housing captain is required to inspect their assigned areas to ensure compliance with DOC protocols.

Administrator Bush explained that he acts as a liason to CHS. He writes:

. . . when CHS identifies a medically vulnerable person...that person is housed in a dedicated housing unit, or is housed either in a type of unit that already provides an increased level of separation from the general population or a unit that provides access to increased clinical attention . . .The Department maintains regular contact with CHS to monitor at-risk individuals in the Department's care...DOC staff have been instructed to refer to any individual in custody who is exhibiting COVID-19 like symptoms to CHS for an evaluation.The Department reopened the Eric M. Taylor Center ("EMTC") for newly admitted individuals showing symptoms to expand capacity for housing and separation of people who have tested positive for COVID-19 . . . Prior to entering all DOC facilities . . . all persons . . . are currently screened for flu-like symptoms . . . .

Dr. Yang reported that CHS developed protocols related to containment, housing, testing and access to medical assistance. As to containment, CHS conducts pre-arraignment screening at Central Booking to identify those who are at greater risk to the virus. CHS and DOC staff members are screened prior to beginning their tours and are expected to self-screen and exercise proper preventive and protective measures. If a staff member exhibits COVID-like symptoms, they are not permitted to report to duty. CHS separately houses and monitors patients who are most vulnerable; those who test positive for COVID and those who have COVID like symptoms and, as appropriate, make recommendations to DOC concerning appropriate housing. CHS, prior to an inmate's discharge, screen that inmate and, when necessary, provide accommodations to those who need to self-isolate upon release.

Dr. Yang further reported that CHS provides therapeutic housing to those on the COVID spectrum; that they have created an 88 bed communicable disease unit; that, in preparation for an influx of COVID cases, the Eric M. Taylor Center ("EMTC"), a facility that had been closed months earlier, was reopened to serve as a surge medical facility to treat and monitor male patients suspected of having COVID; that individuals who are symptomatic but not yet tested are transferred to EMTC and housed in single cell; that those who are asymptomatic, but possibly exposed to the virus, remain in their housing unit and closely monitored for 14 days; that testing is conducted in accordance with local, state and federal guidelines and, as guided by lab capacity and availability of supplies; that test results are received in approximately 24 hours; that those testing positive are housed in EMTC dormitories dedicated to treating COVID; that upon ceasing to be symptomatic, they are released to their housing unit in accordance with Center for Disease Control ("CDC") guidelines; and that CHS has identified additional facilities if current capacity is exceeded and, if a higher level of care is needed, protocols have been established for individuals to be treated at Bellevue and Elmhurst Hospitals.

Notwithstanding the aggressive steps outlined by Dr. Yang to meet the demands posed by COVID-19 to correctional facilities by COVID-19, she cautions:

Despite our best efforts to identify, test, and quarantine potentially infected people, the jail system remains a particularly challenging environment for managing the COVID-19 pandemic. Jails, by definition, are places of congregate living, with the unavoidable [*7]movement of people in and our around shared living spaces; and the introduction of potential sources of transmission as individuals are newly admitted to the jail. Transmission of infectious disease is a known risk in such settings.

Discussion

Undeniably, the COVID-19 pandemic poses an unprecedented threat. On January 30, 2020, the World Health Organization ("WHO") designated the outbreak as a public health emergency of international concern. The following day, Governor Cuomo, declared a state of emergency in New York and issued Executive Order 202 which provided, in pertinent part:

I, Andrew M. Cuomo...find...a disaster is impending in New York State, for which the affected local governments are unable to respond adequately, and I do hereby declare a State disaster emergency for the entire State of New York. The Executive Order shall be in effect until September 7, 2020 . . .

In the months that followed the Governor's declaration, New York State proved to be at the epicenter of the pandemic. Despite the comprehensive, unparalleled and extraordinary actions of State and local officials, there are over three hundred and eighty-four thousand confirmed cases of Covid-19 in New York State and more than twenty-four thousand New Yorkers have lost their lives to the virus.[FN2] The virus has proven particularly virulent to the most vulnerable among us—the old, the frail and the immunity compromised. And congregate facilities, such as nursing homes, food processing plants and prisons, absent effective mitigation policies, have been virus breeding grounds. See People v. ex rel. Stoughton v. Brann, — Misc 3d &mdash, 2020 NY Slip Op 20081 (Sup Ct, NY County).

The Petitioner contends that continuing to hold him in prison on a parole warrant constitutes deliberate indifference to the risk of serious medical harm in violation of the Fourteenth Amendment and under New York States constitutional right to due process. Contrary to the petitioner's contention, this Court finds no evidentiary support for the petitioner's claim that New York City prison officials have acted with deliberate indifference to the health concerns of New York City's prison population.

In a recent case, Boykin v. Moreno, 2020 US Dist LEXIS 31580 (SDNY 2020), the Court analyzed an inmate's deliberate indifference claim and explained the analytical framework to be applied on such a claim under the Fourteenth Amendment:

Deliberate indifference claims under the Fourteenth Amendment are analyzed somewhat differently than the same claims under the Eighth Amendment, which applies to inmates who have been convicted and sentenced (citations omitted) . . . . To be sure, the overarching framework remains the same. Under both . . ., to state a deliberate indifference claim an inmate must plausibly allege (1) 'that he suffered a sufficiently serious constitutional deprivation,' and (2) that the defendant 'acted with deliberate indifference.'The first element 'is evaluated the same way under both the Eighth and Fourteenth Amendment.' (citations omitted). This requirement is 'objective': The inmate must show that the 'the alleged deprivation' is 'sufficiently serious.' (citations omitted). In other words, the inmate must show that he was 'incarcerated under conditions posing a substantial risk of serious harm.'(citations omitted).The second element 'applies differently to claims under the Eighth Amendment and the Fourteenth Amendment' (citations omitted) . . . the Fourteenth Amendment . . . imposes an objective standard. That is, the prison official need only 'recklessly fail[ ] to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.' (citations omitted).

As noted in Boykin, relief under a "deliberate indifference" standard pursuant to the Fourteenth Amendment of the United States Constitution, requires the petitioner to establish two elements. First, that the alleged deprivation was, objectively, "sufficiently serious." And second, that "a prison official . . . recklessly failed to act with reasonable care to mitigate the risk that the condition posed...even though the official knew, or should have known, that the condition posed an excessive risk to health or safety."

In a recent appellate decision, People ex rel. Ferro (Pasha), AD3d , No. 2020-03426 (2d Dept 5/13/20), the Court stated:

Contrary to the petitioner's contentions, the petitioner has not demonstrated that prison officials have been deliberately indifferent to Pasha's medical need or that Pasha is entitled to immediate release from custody as a remedy for any failure to address his medical needs (citations omitted).

Similarly, lower courts have consistently found that petitioners seeking release on deliberate indifference grounds, had failed to meet their burden. In People ex rel. Moulter v. Brann, 67 Misc 3d 1206 (A) (Sup Ct, Bronx County 2020), the Court considered an inmate's claim of "deliberate indifference" and in rejecting that claim, stated:

Even if petitioner were entitled to the release remedy, he has fallen woefully short of establishing that either the City, or the State, is acting with deliberate indifference to him. This Court has found the City has addressed this serious public health crisis in its jails "with responsible concern, and attentiveness. (citations omitted). Those decisions explain, in great detail, the numerous steps the City has taken and the adjustments the City has made as the Center for Disease Control ("CDC") has itself refined and adjusted its own guidelines for dealing with this unprecedented and dangerous public health crisis.

This Court, like the Ferro and Moulter Courts, has previously held that a petitioner failed to establish that prison officials acted with deliberate indifference to his medical needs. See People ex rel. Rende (Bunch), Misc 3d , 2020 NY Slip Op 50595(U) (Sup Ct, Bronx County 2020); see also People ex rel. Prokesch (Ross), Index No. 40090/2020 (Sup Ct, Bronx County, May 26, 2020) (Alvarado, J.); People ex rel Stoughton (Aponte et al), Supreme Ct, Queens County, April 15, 2020) (Holder, J.); People ex rel. Stoughton (Williams et al), Index No. 7451069/2020 (Sup Ct, NY County, April 13, 2020) (Stasinger, J.); People ex rel. Moulter v. Brann (Crockett), 2020 NY Misc LEXIS 1475 (Sup Ct, Bronx County, April 16, 2020) (Fabrizzio, J.). Accordingly, this Court finds that the petitioner has failed to establish, under the Fourteenth Amendment, that prison officials have been deliberately indifferent to the petitioner's medical needs.

Petitioner also seeks release on the ground that continued detention violates New York State's due process standards. In Cooper v. Moran, 49 NY2d 69, 79 (1979), the Court of Appeals concluded that the Federal "depraved indifference" standard "fell short of adequate protection for our citizens . . ." and, in analyzing a claim by pre-trial detainees regarding contact visitation, stated:

In our view what is required is a balancing of the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement.

The analytical framework provided in Cooper is far more flexible than the Federal standard. It allows the Court to balance the countervailing interests of the individual against those of the State. While at least one New York court has questioned whether the Cooper standard applies to a parole violator (see People ex rel. Stoughton (Williams et al), supra,), and another has stated that release via habeas corpus is not legally cognizable (see People ex rel. Moulter v. Brann [Crockett], supra.), this Court, as well as several others, has applied the balancing test of Cooper and have, where appropriate, granted habeas relief to medically vulnerable individuals held on relatively minor, technical parole violations. See People ex rel. Stoughton (Jeffrey); People ex rel. Allen (Bunch), supra.; People ex rel. Allen et al v. Brann, Index No. 260224-2020, April 17, 2020 (Sup Ct, Bronx County, Yearwood, J.); People ex rel. Shefield et al v. Brann, Index No. 260227-2020, April 17, 2020 (Sup Ct, Bronx County, Lieb, J.).

In support of his release application, the petitioner cites the Stoughton (Jeffrey) case. The Stoughton Court stated:

Due process does not excuse prison officials who mean well, but who have no effective way to protect inmates from potentially fatal epidemics...prison officials are obliged to take 'reasonable care' to mitigate the risk posed by COVID-19. That is so especially for prisoners who can fairly expect extremely serious consequences if they contract the disease. 'Reasonable care' and 'mitigation' obligations are not satisfied by tossing a bucket of water on a four-alarm house fire, or by placing a band-Aid on a compound bone fracture. Reasonable care to mitigate must include an effort to employ an effective ameliorative measure . . . .

This Court has reviewed the transcript related to the Stoughton writs and notes that the conference related to those writs was conducted in late March of this year. Although aggressive steps were taken in early 2020 to mitigate the likelihood of COVID-19 transmission and exposure, a great deal of the mitigation efforts undertaken by local and state authorities post- date the Stoughton conference. Consequently, the Stoughton Court did not have the benefit of the Yang, Feeney and Bush affidavits outlining the extensive policies and protocols implemented to mitigate the risk of infection by the City's prison population.

Despite the implementation of those extensive and effective policies and protocols, several courts, applying the Cooper standard, have concluded that release was nonetheless appropriate. In Allen (Bunch), this Court held:

[N]otwithstanding the substantial efforts by the State, City and their agencies to identify, test, isolate and safeguard those housed and working within New York's correctional facilities, the "jail system remains a particularly challenging environment for managing the COVID-19 pandemic." This Court, in recognition of the extraordinary threat posed by the Coronavirus, particularly to those with comorbidities residing in congregatesettings such as correctional facilities, upon application of the Cooper balancing test, and upon consideration of the particularized factors in this case—factors that include the Petitioner's age, medical condition, background, the limited time left on parole, the gravity of the alleged parole violation, the risk that his release poses to society and the fact that the Department of Parole may renew parole revocation proceedings upon abatement of the virus—grants, without prejudice, the Petitioner's writ of habeas corpus.

Unlike Allen, application of the Cooper test to the particularized facts in this matter militate against release. The petitioner's application is premised upon a diagnosis of elevated blood pressure without hypertension and mild, intermittent, uncomplicated asthma. However, as noted, the petitioner failed to submit any medical documentation that these conditions constitute a heightened risk of illness or death to an otherwise healthy twenty-five year oldwho contracts COVID-19.

In addition, while city agencies, the Attorney General's Office and the City's prosecutors' offices have aggressively sought to release inmates held on technical parole violations, unless doing so would pose a serious risk to the physical safety of the community, this particular petitioner does not fall into that category. This petitioner, as indicated by his robbery conviction and youthful offender adjudications spanning back to when he was fourteen, has repeatedly engaged in violent felony offenses which, on at least one occasion, involved the display of a firearm. While on parole, the petitioner not only violated technical provisions of his parole, he also allegedly threatened potential witnesses on various occasions.

This Court finds that the petitioner's age, his background, his extensive criminal history and the violent nature of that history; his failure to abide by the conditions he agreed to adhere to while on parole; and the ongoing and serious risk that he poses to the physical of the community, as demonstrated by his repeated threatening behavior while on parole, when weighed against his relatively minor and wholly treatable elevated blood pressure and his mild, intermittent, uncomplicated asthma, justifies continued detention pending a final parole revocation proceeding. Accordingly, the petitioner's writ of habeas corpus is denied.

This constitutes the Order and Decision of the Court.

DATED: June 16, 2020

Bronx, New York

Hon. Steven Hornstein Footnotes

Footnote 1: www1.nyc.gov, NYC Board of Correction and COVID-19

Footnote 2: https://covid19tracker.health.ny.gov