People ex rel. Squirrell v. Langley

68 Misc.3d 498

124 N.Y.S.3d 901

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,

v.Robert L. LANGLEY, Sheriff, Putnam County, Respondent.

Index No. 500451/2020

Supreme Court, Putnam County, New York.

Decided May 20, 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. Petitioners' Order to Show Cause, seeking a Writ of Habeas Corpus, pursuant to CPLR § 7000, et seq. , and the release of the individual Petitioners,¹ together with such other and further relief as the Court deems appropriate and equitable.

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 argument.²

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.³ 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.⁴

Mariliano Ramos-Miguel is 44 years old. He is detained at PCCF and agreed, in writing, 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.⁵

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.⁶ 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 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.⁷ 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.⁸

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...