Criminal Appeals Bureau 199 Water Street, 5th Floor New York, NY 10038 (212) 577-3688 https://www.legalaidnyc.org/
Tel (646) 455-7267 [email protected]
John K. Carroll April 17, 2020 President
New York State Department of Corrections and Community Supervision Janet E. Sabel Attorney-in-Chief Executive Clemency Bureau Chief Executive Officer The Harriman State Campus Building 2 Justine M. Luongo 120 Washington Avenue Attorney-in-Charge Albany, N.Y. 12226-2050 Criminal Practice
David Loftis VIA E-MAIL: Attorney-in-Charge of Post-Conviction and Forensic Litigation Re: Executive Clemency Application
Dear Clemency Review Team:
Attached to this letter are 14 applications seeking executive clemency from Governor Cuomo. In light of the quickly escalating public health crisis that the COVID-19 pandemic has triggered within New York State prisons, we ask for expedited review of these applications, and we ask that the Governor effectuate the immediate release of these clients. As a group, these clients are particularly vulnerable to the devastating effects of COVID-19 or are close to the point at which they would otherwise be entitled to release. And most of these clients have specific housing plans so that their release from prison will drastically diminish the risk that they will be exposed to the coronavirus. Additionally, independent of the current pandemic, these applicants all have strong equities and are deserving of executive clemency.
As we noted in our April 3rd submission, we are sending expedited clemency applications to your office in groups so that they may be administered more efficiently; this is the fifth group. Some of these applications are supplemental to applications filed in the past; on the following list of the attached applications, we have indicated when that is the case. This group of applications are on behalf of the following individuals:
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12)
Executive Clemency Bureau Page 2
(13) (14)
If you have questions or need further information, please do not hesitate to reach out to myself or the individual attorneys who prepared the clemency applications.
Very truly yours, David Loftis
David Loftis Attorney-in-Charge Post-Conviction and Forensic Litigation 646-455-7267
Criminal Appeals Bureau 199 Water Street New York, NY 10038
Tel: 212-577-3688 www.legal-aid.org
Blaine (Fin) V. Fogg President Seymour W. James, Jr. Attorney–in–Chief
Justine M. Luongo April 16, 2020 Attorney-in-Charge Criminal Practice
New York Department of Corrections and Community Supervision Executive Clemency Bureau The Harriman State Campus Building 2 120 Washington Avenue Albany, New York 12226-2050 VIA E-MAIL
Re: Executive Clemency Application: Phillip Brown DIN #. 18-A-1515; NYSID #: 14009428H; DOB: 11/10/59
Dear Executive Clemency Bureau:
I am writing on behalf of Phillip Brown, who is currently incarcerated at Groveland Correctional Facility. Mr. Brown is years old and suffers from asthma, a heart condition (he previously had a heart attack), high blood pressure, and sleep apnea and, thus, he has a high risk of severe illness and death if he contracts the novel coronavirus COVID-19. Moreover, he has been a model prisoner and his conditional release date is January 13, 2021.
Mr. Brown served his country honorably in the Army, where he was awarded six different medals and commendations. He has a lengthy employment history. He has only one prior criminal conviction, a misdemeanor. And, his current offense is for weapon possession for having guns that he lawfully possessed in Texas, where he had recently come from, and which he did not know were illegal to possess in New York. Therefore, for all of these reasons, I would respectfully request his immediate release.
Mr. Brown Has a High Risk of Severe Illness or Death
Mr. Brown is a year old (born on 11/10/59) male who suffers from serious medical issues, including asthma, a heart condition, high blood pressure, and sleep apnea. Thus, he has a much greater risk of getting very sick or dying if he contracts COVID-19.
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Mr. Brown’s medical problems are numerous and serious. In 2008, he suffered a heart attack. For years he has also had problems with high blood pressure and a few months ago his blood pressure spiked substantially. He takes medication for this problem daily. He also suffers from asthma. Every winter while he was in he was living in Texas he had asthma attacks that were brought on by allergies and caused him difficulty in breathing and, as a result, he was prescribed medication and an inhaler to be used as needed. Although he has not had an asthma attack since he was incarcerated he would, nevertheless, be in grave danger if he contracted COVID-19. Finally, Mr. Brown also suffers from sleep apnea, another serious respiratory condition in which his breathing repeatedly stops and starts, which he has had for about 15 years. As a result at nighttime he snores loudly, feels as if he is choking and might vomit, and gets out of bed every hour or hour and a half. Before he was incarcerated Mr. Brown used a continuous positive air pressure (cpap) machine at night which helped his sleep apnea by providing him with constant and steady air pressure but, since he has been incarcerated, he has not been given one of these machines although he has requested it.
According to the Centers for Disease Control and Prevention (“CDC”), medically vulnerable people include those with moderate to severe asthma, serious heart conditions, chronic lung disease, severe obesity, or underlying medical conditions such as diabetes, renal failure and liver disease. CDC, Coronavirus Disease 2019: People Who Are at Higher Risk for Severe Illness. (Emphasis added). See also Coronavirus Disease 2019: People with Moderate to Severe Asthma, CDC (“People with asthma may be at higher risk of getting very sick from COVID-19. COVID-19 can affect your respiratory tract (nose, throat, lungs), cause an asthma attack, and possibly lead to pneumonia and acute respiratory disease.”).
Given that Mr. Brown has two serious respiratory conditions, high blood pressure, and a history of heart issues, it is evident that he should be released as soon as possible. See United States v. Powell, No. 1:94-cr-316-ESH, Dkt. No 98 (D.D.C. Mar. 28, 2020) (in light of COVID-19, granting release motion filed by inmate with respiratory problems, including sleep apnea and asthma); Fraihat v. Wolf, 20-cv- 590 (TJH) (C.D. Cal., Mar. 30, 2020) (in immigration habeas proceeding, granting release to detainee with asthma and other ailments, noting that release is in the public interest, and stating, “in the time of a crisis, our response to those at particularly high risk must be with compassion and not apathy. The Government cannot act with a callous disregard for the safety of our fellow human beings”).
Moreover, Mr. Brown faces a greater risk of COVID-19 infection by remaining in DOCCS custody and that risk is growing daily as the virus spreads among state facilities. While the rapid spread of COVID-19 has created an emergency throughout the State of New York this is especially so in New York’s prisons.
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Overall, at the time of this clemency application, there have been 213,779 confirmed cases and 11,586 deaths in New York State. As of April 8, nearly 400 incarcerated individuals and employees within DOCCS have tested positive for COVID-19, which is presumably a low estimate due to the lack of testing.1 Moreover, this number has almost certainly grown since, and, so far, two prisoners in DOCCS custody have died.2 The coronavirus/COVID-19’s rapid proliferation in New York State is even more dangerous within prison, due to the fundamental nature of prison: DOCCS has more than 43,000 incarcerated individuals in 52 correctional facilities that employ an additional 29,000 people.3 Prisons simply cannot adequately socially distance dozens and hundreds of inmates, including the vulnerable inmates. The living conditions in prison -- limited access to soap and water, and shared bathrooms, mess halls, and living quarters -- create a heightened risk of being infected.4
Given this, the Brooklyn District Attorney’s Office and the former New York City Health Commissioner have warned that “this is a public health crisis that threatens to become a humanitarian disaster” and recommended that the Governor grant early parole to people who are within 180 days of completing their sentences.5 Similarly, the Board of Corrections in New York City has called for the immediate release of those most at-risk by COVID-19 infection: people who are over 50 and those with pre-existing medical conditions.
At Groveland, Mr. Brown continues to be in close settings with other incarcerated individuals. Most notably, he sleeps in a dorm room (G Dorm) with about 14 or 15 other inmates and his bed is about six inches apart from another inmate’s bed, separated only by a flimsy wall that is about one or two inches deep and about four feet high. As per DOCCS policy, he will not be provided with a mask and none of the corrections officers wear them despite the increasing rates of infection among corrections staff.
1 Robert Harding, More COVID-19 Cases in NY Prisons, Groups Urge Cuomo to Release High-Risk Inmates, The Citizen (Apr. 8, 2020), available at https://auburnpub.com/news/local/govt-and-politics/more-covid-19- cases-in-ny-prisons-groups-urge-cuomo-to-release-high-risk-inmates/article_c616d0b8-71cd-56f3-b108- 402c1abd282e.html (last visited April 9, 2020). 2 See Andrew Denney, First New York Prisoner With Coronavirus Dies at Sing Sing, N.Y. Post (April 2, 2020); ftn. 1. 3 See ftn. 1. 4 See, e.g., Providers of Alice Hyde Medical Center, Spread of COVID-19 Into Prisons a Concern, My Malone Telegram (March 31, 2020); ftn. 5. 5 See Mary Bassett, DA Eric Gonzalez, and Daren Walker, Andrew Cuomo, Stop a Coronavirus Disaster: Release People From Prison, N.Y. Times (March 30, 2020).
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Mr. Brown’s Prison Record
Mr. Brown has been a model prisoner, who does not have a single disciplinary infraction while he has been incarcerated. He is also an assistant teacher of a course in General Business, where he helps to teach other inmates how to use Microsoft Word and other important business skills. Finally, he has already served most of his 4 year prison sentence and his conditional release date is less than 9 months away.
Mr. Brown’s Background
Mr. Brown should also be released because of his impressive background, starting with fact that he served his country with distinction in the United States Army from 1980 until 1984 when, after reaching the rank of sergeant, he was honorably discharged. For his outstanding service he received six medals and commendations: 1/ on December 30, 1982, he was awarded an Army Commendation Medal for his outstanding conduct from June 1980 through November 1982; 2/ in 1982, he was named Company Soldier of the Year and he was in contention for Battalion Soldier of the Year; 3/ on January 18, 1983, he was awarded the Army Achievement Medal. His award certificate stated that his “outstanding personal appearance and military bearing demonstrated meticulous attention to detail found only in the finest of solders,” that his performance “earned him the unparalleled respect of his peers and superiors,” and that his efforts reflect “great credit upon himself, the Noncommissioned Officer Corps and the United States Army;” 4/ on July 15, 1983, he was awarded an Army Achievement Medal for distinguished performance; 5/ on February 21, 1984, he was awarded another Army Commendation Medal for his distinguished performance from December 28, 1982 until February 18, 1984. His certificate stated, among many other things, that he had established standards of soldiery performance which made him a worthy example for his contemporaries to emulate; and 6/ he received a Noncommissioned Officer Professional Development ribbon for various achievements and for good conduct.
Mr. Brown also has a lengthy and impressive work history. After his service in the Army, he worked for , where he was involved in manufacturing, producing, and testing. He then worked for various manufacturing companies from 1984 to 1990. He subsequently worked for six years for as a microelectrics technician and, after that, for six years as a shift manager at . In addition, he has also worked at where he was in manufacturing, and for two years at , an aerospace company.
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Finally, Mr. Brown has only one prior criminal conviction, for misdemeanor drunk driving in
Mr. Brown Was Not Aware That He Was Committing a Crime
Mr. Brown was convicted of criminal possession of a weapon in the second degree after the police found three guns and various other items in the trunk of his car. Significantly, he legally possessed all of these in , where he had lived until recently. And he did not know, when he brought them to -- where he had accepted a job at , a company in , as a production supervisor -- and then to that it was illegal for him to do so.
Mr. Brown was clearly not aware that it was illegal for him to possess these weapons in because he made no absolutely attempt to hide the fact that he had them. When he moved from , he asked the moving company to transport his guns rather than secretly trying to do so himself. Then, after he lost the job at and had to leave the company-owned townhouse where he lived, he specifically asked the company representative to send the rest of his property, including the guns, which he had left in a closet in the townhouse and which he did not intend to take with him in his car, back to After the representative informed him, however, that they could not ship the guns and that he had to remove them himself, he openly discussed this with a y police officer who was present. Mr. Brown, who had told the officer that he legally owned the weapons guns in and that he planned to drive to for a possible job interview before returning to , then loaded the firearms into the trunk of his vehicle under the watchful eyes of the officer. The officer, who described Mr. Brown as being very calm and cooperative, did not attempt to arrest him for possessing the weapons and did not tell him that it was illegal to do so but, instead, allowed him to drive away. Mr. Brown was subsequently arrested 11 days later in , where the police found the weapons still packed in the trunk of his vehicle. Thus, it is evident that Mr. Brown, who did not otherwise display the weapons when he was in , had no reason to believe that he was, in fact, committing a crime.
Conclusion
In sum, Mr. Brown should be released from DOCCS custody since he is suffers from asthma, and has a serious heart condition, high blood pressure, and sleep apnea and, thus, has a much higher risk of severe illness and death if he contracts COVID-19. In addition, he has been a model prisoner while he has been in custody; his conditional release date is less than nine months away; he served his
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country honorably in the Army, where he was awarded six medals and commendations; he has a lengthy employment history; he has only one prior criminal conviction, for misdemeanor drunk driving; and, he did not know that it was illegal for him to possess the weapons, which he legally possessed in .
Thank you for your timely consideration of Mr. Brown’s application. I am available for your convenience to answer any questions.
Very truly yours,
/s/ Paul Wiener
PAUL WIENER Associate Appellate Counsel [email protected]
Criminal Appeals Bureau 199 Water Street New York, NY 10038 (212) 577-3564 www.legal-aid.org
Whitney Elliott, Staff Attorney Tel: (917) 922-7601 [email protected]
April 17, 2020 John K. Carroll President SENT BY EMAIL: Janet E. Sabel Attorney-in-Chief DOCCS Executive Clemency Bureau Chief Executive Officer
Harriman State Campus Justine M. Luongo 1220 Washington Avenue Attorney-in-Charge Albany NY 12226 Criminal Practice David Loftis Re: Emergency Clemency Petition on Behalf of James Haynie Attorney-in-Charge DIN 17-R-0104 of Post-Conviction and Forensic Litigation DOB: 03/19/1961 County Ind. No. 1932/16
To Whom It May Concern:
The Legal Aid Society respectfully requests that Mr. James Haynie’s sentence be commuted so as to authorize his immediate release from prison. Mr. Haynie is currently serving a six-year prison sentence on convictions for one count of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a weapon in the second degree. Upon release, he requests to begin serving his five-year term of post-release supervision. He now merits immediate release because he is medically vulnerable due to his age ( ) and the fact that he suffers from high blood pressure, a condition directly linked to higher risk of serious illness or death in patients who contract the coronavirus. In addition, Mr. Haynie is likely to have his conditional release date moved from June 2021 to December 2020, as he is scheduled to earn a Limited Credit Time Allowance because of his work as an Inmate Program Associate; he has concrete, stable housing plans upon release; and he has been a model inmate for his entire sentence. We respectfully submit that all of these factors justify commuting Mr. Haynie’s sentence.
Circumstances of the Underlying Offenses
In early 2016, the New York Police Department was investigating Mr. Haynie for his involvement in cocaine sales (mostly involving amounts ranging from 3.5 to 10.5 grams). Police obtained a warrant to search Mr. Haynie’s apartment, and in executing the warrant, found cocaine, cash, paraphernalia, and five loaded guns. Mr. Haynie immediately accepted responsibility for all of the contraband that the police found in his apartment.
Mr. Haynie’s Medical Risks
Given the current coronavirus/COVID-19 crisis, Mr. Haynie is at risk of serious medical complications should he contract the virus. He is years old, a fact that itself increases his risk of having such complications. See E.J. Mundell, Odds of Hospitalization, Death with COVID-19 Rise
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Steadily With Age: Study, U.S. News, Mar. 30, 2020 (quoting co-author of recent Lancet article as stating that “[o]ur analysis very clearly shows that at age 50 and over, hospitalization is much more likely than in those under 50, and a greater proportion of cases are likely to be fatal”).1 He has long suffered from, and taken medication for, high blood pressure—a condition that aggravates the health risks created by COVID-19. See Allison Aubrey and Joe Neel, CDC Hospital Data Point to Racial Disparity In COVID-19 Cases, NPR, Apr. 8, 2020 (discussing recent study finding that 90% of people hospitalized with COVID-19 had at least one underlying health condition, and that for 50% of those people that underlying condition was high blood pressure).2
Mr. Haynie’s age and medical vulnerability are especially relevant because the novel coronavirus appears to have already arrived at the Wallkill Correctional Facility. An April 3rd article reported that four correction officers at Wallkill had tested positive for the virus, and that seven were being quarantined. Katelyn Cordero, Coronavirus: NY correctional officers can wear masks, 120 tested positive: union, POUGHKEEPSIE JOURNAL, Apr. 3, 2020.3 Mr. Haynie has also reported inconsistent enforcement of social distancing recommendations: although DOCCS has taken some steps to allow some social distancing at Wallkill, such as permitting two people at a table for meals, inmates still come into close contact with each other often, such as when waiting in line for meals.
Mr. Haynie’s Release Plans
Once Mr. Haynie is released from custody, he will go to live with his partner Marilyn Crow at 70 South Munn Avenue, Penthouse Suite 1101, East Orange, New Jersey, where Ms. Crow lives with her elderly godmother. Mr. Haynie has had a relationship with Ms. Crow since 2014. Ms. Crow attended all of Mr. Haynie’s court appearances for the case resulting in his current sentence. She and Mr. Haynie speak on the phone every day and have done so over the course of Mr. Haynie’s entire sentence. In addition, Mr. Haynie has concrete work plans upon his release; namely, restarting the trucking/shipping business that he operated before his arrest. Ms. Crow is able and willing to financially support Mr. Haynie until he again sets up his business.4 In addition, The Legal Aid Society would provide Mr. Haynie with reentry services as he transitions back into the community.
Mr. Haynie’s Good Conduct While Incarcerated.
Since Mr. Haynie started his prison sentence, he has not had a single disciplinary infraction. As a result of his work as an Inmate Program Associate, he is scheduled to earn a Limited Credit Time
1 Available at https://www.usnews.com/news/health-news/articles/2020-03-30/odds-of-hospitalization-death-with-covid- 19-rise-steadily-with-age-study (all internet materials as visited Apr. 17, 2020). 2 Available at https://www.npr.org/sections/coronavirus-live-updates/2020/04/08/830030932/cdc-hospital-data-point-to- racial-disparity-in-covid-19-cases 3 Available at https://www.poughkeepsiejournal.com/story/news/local/2020/04/03/coronavirus-ny-correctional-officers- permitted-wear-masks/2940580001/ 4 Undersigned counsel’s has confirmed all aspects of Mr. s release plan in multiple conversations with .
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Allowance that will reduce his sentence by six months, and thus move his conditional release date from June 2021 to December 2020. In his work as an Inmate Program Associate, Mr. Haynie has taught an education course for other inmates. Although Mr. Haynie’s teaching work has been interrupted because of the COVID-19 pandemic (as most programming has been suspended), he continues working every morning in the facility’s “industry” program, doing recycling—a program that has not been suspended because of the pandemic. Further, earlier in his sentence, Mr. Haynie worked as a cook in the mess hall at the Watertown Correctional Facility. Thus, Mr. Haynie’s conduct while incarcerated also supports commuting his sentence.
Mr. Haynie’s Other Equities
Apart from his medical risks, his concrete release plans, and his good conduct while incarcerated, other equities support commuting Mr. Haynie’s sentence. His mother is 93 years old and still lives alone ( ). She has not left her apartment since the social distancing measures resulting from COVID-19 began. She has an attendant in her home for four hours a day, Monday to Friday. She has several ailments, including glaucoma, and also has limited mobility such that she uses a walker. Further, of his mother’s two children, Mr. Haynie is the only one capable of providing her with assistance in her day to day life—Mr. Haynie’s brother, Roosevelt Haynie is blind and lives in . Mr. Haynie is therefore eager to be released so that he can provide support for his elderly mother.
Finally, the relief Mr. Haynie requests is limited. Even if his sentence is commuted so as to authorize his immediate release, he would still have to serve the five-year post-release supervision component of his sentence—and he would be years old when he completes that five-year term. Requiring Mr. Haynie to serve another eight months of incarceration before starting his post-release supervision unnecessarily puts Mr. Haynie at significant risk of potentially lethal harms.
For all of these reasons, we respectfully request that Mr. Haynie’s sentence be commuted so as to authorize his immediate release from prison. If there is any other information about this request that I can provide, please feel free to contact me at [email protected], or (917) 922-7601. Thank you for your consideration.
Respectfully submitted,
THE LEGAL AID SOCIETY /s/ Whitney Elliott, Staff Attorney
Criminal Appeals Bureau 199 Water Street New York, NY 10038
Tel: 212-577-3688 www.legal-aid.org
John K. Carroll President Janet E. Sabel Attorney–in–Chief
Justine M. Luongo Attorney-in-Charge Criminal Practice
David E. Loftis April 17, 2020 Attorney-in-Charge Post Conviction and Forensic Litigation
The Honorable Andrew M. Cuomo Governor of the State of New York Executive Chamber Capitol Albany, NY 12207
BY E-MAIL: [email protected]
Re: Emergency Clemency Petition (COVID-19) Darryl Jackson DIN 19-R-1430
Dear Governor Cuomo:
I represent Darryl Jackson, DIN 19-R-1430, DOB 12/14/1954. Mr. Jackson is years old and is incarcerated at Greene Correctional Facility. Were Mr. Jackson to become infected with the novel coronavirus, it would pose a high risk to him of hospitalization or death in light of his age and his serious medical conditions. The risk of becoming infected with this virus is greatly increased in the crowded conditions of a prison. Therefore, I am writing to request that Mr. Jackson’s sentence be commuted so that he can be conditionally released immediately, less than 2 months ahead of his scheduled conditional release date of 06/09/20.
Mr. Jackson was convicted of the non-violent felony of criminal possession of a controlled substance in the third degree in Supreme Court, County,
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as charged in County Indictment 2410/2017. He was sentenced on July 11, 2019 to a determinate term of imprisonment of 2 years and a period of post- release supervision of 2 years. Mr. Jackson has served almost 1 year and seven months of his sentence. Mr. Jackson is scheduled to be conditionally released from prison on June 9, 2020. The maximum expiration date for the prison component of his sentence is September 23, 2020.
Earlier this week, Melissa DeRosa made a statement that was quoted in the New York Post that “DOCCS [had begun] the process of releasing those with 90 days or less remaining on their sentence who are 55 years of age or older, and whose underlying crime was not a violent felony or a sex offense.” As a -year-old man who is imprisoned for a drug conviction and is scheduled to be conditionally released in less than two months, Mr. Jackson meets all of these criteria. Moreover, an examination of his criminal history shows that he has never been convicted of a violent felony or sex offense. Almost all of his criminal convictions have been drug-related, except for misdemeanor convictions for attempted grand larceny and theft of services.1
In light of Mr. Jackson’s age, the nature of his conviction, and his upcoming release date, and in accord with the policy announced by Ms. DeRosa, it is respectfully requested that he be released immediately either by means of a commutation of the prison component of his sentence to time served, or by any other legal means at the Governor’s disposal. Even if the prison component of Mr. Jackson’s sentence is commuted, he will remain subject to a period of post-release supervision for the next 2 years.
Mr. Jackson has serious medical problems that highlight the urgency of securing his release. During a phone conversation on April 16, 2020, Mr. Jackson described his medical conditions that, along with his age, put him at heightened risk for serious illness, or even death, should he contract the novel coronavirus while in
1 This information is based upon a report on Mr. Jackson’s criminal history provided to his attorney at his arraignment in the case that resulted in his current incarceration. It appears that he has a non-criminal conviction for the violation of disorderly conduct that is not reflected in that criminal history.
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the crowded confines of prison.2 Mr. Jackson reported that he has Type 2 diabetes for which he takes insulin. He estimated that his diabetes was diagnosed about 30 years ago. He also has had asthma for about 25 to 30 years, and has an inhaler for use in treating asthma attacks. In addition, Mr. Jackson reports that he was diagnosed with Parkinson’s Disease about three years ago. This disease manifests itself through periodic tremors in the right hand. Mr. Jackson takes pills twice a day as treatment for his Parkinson’s Disease. Mr. Jackson believes that the symptoms arising from some of his medical problems were less severe before his arrest; he attributes the worsening of symptoms to the availability of medications in the community that have not been provided to him in prison.
Although Mr. Jackson would need to seek space in a shelter upon his release, I informed Mr. Jackson that the City of New York was providing hotel rooms for vulnerable populations who did not have other places to live. I suggested to him that his medical conditions (and age) might make him eligible for such housing. I urged him to make inquiries about his eligibility for a hotel room upon his release. I provided this guidance after communicating with a colleague in The Legal Aid Society’s Homeless Rights Project, who is following the City’s efforts to house undomiciled individuals, particularly those who are medically vulnerable, in response to the pandemic. In any event, Mr. Jackson’s ability to take steps to protect himself from being infected would be significantly better outside of prison than it is now.
In sum, Mr. Jackson respectfully requests that the prison component of his sentence be commuted to time served, or that any other legal means be utilized to effectuate his immediate release. If additional information is needed in connection with this application, please do not hesitate to contact me.
Respectfully submitted,
/s/ Arthur H. Hopkirk
2 I am relying on this phone conversation for information about Mr. Jackson’s medical conditions because I was only assigned by our office to represent Mr. Jackson earlier this week.
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ARTHUR H. HOPKIRK Associate Appellate Counsel The Legal Aid Society (cell phone) 718-683-7871 [email protected] Criminal Appeals Bureau 199 Water Street New York, NY 10038 (212) 577-3564 www.legal-aid.org
Tel (212) 577-3696 [email protected]
John K. Carroll April 17, 2020 President
Janet E. Sabel Attorney-in-Chief New York State Department of Corrections and Community Chief Executive Officer
Supervision Justine M. Luongo Executive Clemency Bureau Attorney-in-Charge The Harriman State Campus Building 2 Criminal Practice 120 Washington Avenue David Loftis Attorney-in-Charge Albany, N.Y. 12226-2050 of Post-Conviction and Forensic Litigation
VIA E-MAIL:
Re: Executive Clemency Application, Leslie Jimenez DIN # 17A1751, NYSID # 3696001Z, D.O.B. 11-16-1955 County Ind. No. 4696/2016
Dear Executive Clemency Bureau:
I submit this emergency clemency application on behalf of Mr. Leslie Jimenez who is currently incarcerated at Coxsackie Correctional Facility. Mr. Jimenez is a -year-old man living with HIV, with deteriorating health. He reports that recent blood tests indicate he is at great risk of developing full-blown AIDS, which would put him in the highest risk category for complications and death from COVID-19. Mr. Jimenez is in his fourth year of a 14-year sentence for robbery. If he contracts the virus while incarcerated, which is an increasingly real threat, his punishment for this offense would instead become a possible death sentence. Mr. Jimenez’s sister, an office administrator in a hospice center in , is ready and willing to take her brother in and care for him upon release, including providing financial support and health care.
For these reasons, we respectfully request a conditional commutation of his sentence. specifically, we request that the prison component of his sentence be commuted to time served, with the additional conditions that (1) Mr. Jimenez remain subject to the full period of 5 years post-release supervision as imposed by his original sentence; and (2) that if he were convicted of a felony during the period of post-release supervision, the commutation would be void (See Executive Law §181) and the sentence for the new felony would run consecutively to the time he had remaining on his prison sentence before the commutation.
1 Executive Law §18 provides: “If any person who has been discharged from imprisonment, by virtue of any parole, conditional pardon, or conditional commutation of his sentence, shall violate such condition or neglect to perform it, his parole, pardon or commutation shall be void and he shall be remanded to the place of his
Mr. Jimenez Is Immunocompromised with HIV and other Risk Factors
The CDC has advised that the people at higher risk of getting very sick or dying from COVID-19 include: (1) adults over the age of 60 and (2) people who are immunocompromised such as those living with HIV.2 Mr. Jimenez has had HIV/AIDS since at least 1989 and has also been diagnosed with hypertension. 3 He is currently on HAART (Highly Active Antiretroviral Therapy), with a daily tablet of TRIUMEQ. He also takes Lisinopril daily for his hypertension.
Although Mr. Jimenez has been managing his HIV infection with antiretroviral therapy (“ART”) for many years, unfortunately there are recent indications that his health is deteriorating. To provide some brief context, the progression from HIV to AIDS can be measured by the number of a certain type of cell – CD4 cells – found in the blood. “These are the cells that the HIV virus kills. As HIV infection progresses, the number of these cells declines. When the CD4 count drops below 200, a person is diagnosed with AIDS. A normal range for CD4 cells is about 500-1,500.”4 Mr. Jimenez’s viral load had remained undetectable for many years due to his compliance with ART, but his last blood test from earlier this year indicated a detectable viral load. His CD4 count at that time was below 200 cells per cubic millimeter of blood.5 At levels below 200 cells per cubic millimeter, patients become susceptible to a wide variety of opportunistic infections, many of which can be fatal. For this reason, the CDC advises that “the risk for people with HIV getting very sick is greatest in…people with a low CD4 cell count.”6
The risk of opportunistic infection that accompanies advanced HIV and AIDS puts Mr. Jimenez in the highest risk category for complications and death from COVID-19. Despite this, DOCCS has failed to closely monitor Mr. Jimenez’s HIV infection. After being transferred to Coxsackie C.F, Mr. Jimenez saw a doctor last month who recommended a new blood test to check his CD4 count. But that doctor did not order the test at that time, stating that he did not have any of the records from the facility where Mr. Jimenez was previously former imprisonment and there confined for the unexpired term for which he had been sentenced. Determination of violation of such parole, pardon or commutation and reincarceration therefor shall be had in the manner set forth in the correction law.”
2 Centers for Disease Control and Prevention, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html. 3 See Exhibit A: DOCCS Medical Records, Leslie Jimenez. 4 U.S. Department for Veterans Affairs, HIV: CD4 Count (or T-Cell Count) https://www.hiv.va.gov/patient/diagnosis/labs-CD4-count.asp (last visited April 16, 2020). 5 We are awaiting the release of these medical records from DOCCS, for which we have an outstanding request. 6 Centers for Disease Control and Prevention, What to Know About HIV and COVID-19 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/hiv.html
housed, which the doctor claimed he needed to order the test. He indicated that Mr. Jimenez may have to wait until May for the test. At this time, Mr. Jimenez is still awaiting a blood test to check his CD4 count and viral load.
Additionally, although Mr. Jimenez is a particularly vulnerable older man, DOCCS has taken very few protective measures to keep him safe. To his knowledge, the facility has not implemented testing either widespread or for those particularly vulnerable. He has not been provided with any cleaning supplies to disinfect his cell, nor has he been provided with a mask or gloves. He reports that no new hygiene measures are in place in the mess hall or in the yard, aside from the recent introduction of Styrofoam cup usage. While some social distancing measures are enforced, for example spacing inmates out on the line to go to the mess hall, enforcement inside the mess hall and in the yard is inconsistent. So long as he is incarcerated, Mr. Jimenez is unable to take many of the steps that the CDC and experts worldwide recommend for reducing the risk of transmission.
Mr. Jimenez’s Post-Release Housing Plan
Mr. Jimenez’s family in New York City are eager for his release and are making plans to support him financially and with housing. Upon release, he will live with his sister Ingrid Marriotti, in . Their mother also lives in and is eager for his release. Ms. Marriotti, who is in regular touch with her brother, has confirmed with me that Mr. Jimenez would have his own room at her home, which she will furnish with a bed, a bureau and a television. She will also provide him with financial support; she works full time at , as an office manager of 22 years, and remains employed during the coronavirus shutdown. From her job, she knows firsthand the tragic toll of the pandemic, and has been extremely worried about her brother. She said to me, “This is very scary. It makes no sense to me that they’re not really taking precautions in the prison. I tell him: Stay in your cell. Wash your hands. Don’t touch your face.” She also mailed him a package with masks but is afraid it will be confiscated per DOCCS package policies. She hopes that her brother will be released to her care so she can help take care of him during this pandemic.
Mr. Jimenez’s Current Offense and Incarceration
The 2017 conviction for which Mr. Jimenez is currently incarcerated is Robbery in the First Degree and Criminal Possession of a Weapon in the Second Degree. The conviction stemmed from an incident on August 27, 2016, in which Mr. Jimenez brandished a gun and tried to rob the manager of a cleaning business as she was entering a building to pay her workers. During the struggle that ensued, Mr. Jimenez shot her in the leg, and took $1,800 in cash from her. In a taped confession, he immediately expressed remorse, stating
that his intention was not to injure her.7 He was sentenced to 14 years’ incarceration to be followed by 5 years’ post-release supervision. Mr. Jimenez also served time previously for a manslaughter conviction in 1983, in which he pleaded guilty and received an indeterminate sentence of 11 to 22 years. We certainly recognize the serious nature of Mr. Jimenez’s convictions and do not make light of the harm he committed. Nevertheless, Mr. Jimenez did not receive nor does he deserve a death sentence for his actions. Continued incarceration also serves little purpose given the reduced threat he poses at his advanced age and with such serious health conditions. He will continue to be supervised upon release and be subject to the condition that his commutation be rendered void if he sustains a new felony conviction. He could also be placed under additional conditions of supervised release, such as house arrest, with frequent virtual check-ins with community supervision, as the Executive Clemency Bureau sees fit.
His disciplinary and program records during his period of incarceration further demonstrate that he is not a threat to society. He has maintained regular employment, first working in the Division of Correctional Industries (“Industries”), where he operated the edge bander machine to manufacture products for 8 Per the website, the program “uses the manufacturing of products to assist in the department's overall mission to prepare offenders for release through skill development, work ethic, respect and responsibility.”9 His supervisor at Industries wrote on November 27, 2017 that “[Mr. Jimenez] shows initiative and inspects for quality… he is a reliable/good worker.”10
In January of 2018, after Mr. Jimenez was promoted to Industries Worker II, his supervisor wrote that “[Mr.] Jimenez is an asset to [the unit].”11 After Mr. Jimenez was transferred to a different facility, he worked in the laundry room to similar commendation. His supervisor wrote in June 2019, “Mr. Jimenez is a hard worker” and “he will do any task asked of him.”12 These records indicate that, should his health allow, Mr. Jimenez would be a productive working member of society upon his release. They also suggest that he would be compliant with conditions of supervised release.
7 Voluntary Disclosure Form served by the prosecution in Indictment , Supreme Court File. 8 is the "brand name" for the Division of Correctional Industries, an entity within the NYS Department of Corrections and Community Supervision. 9 See About t (Apr. 7, 2020) http://www. ?langId=- 1&storeId=10001&catalogId=10051 10 See Exhibit B: Inmate Progress Reports, Leslie Jimenez, November 17, 2017. 11 Id., January 16, 2018. 12 Id., June 19, 2019.
Conclusion
As COVID-19 infections continue to surge and cause thousands of premature deaths in New York State, we respectfully ask that Mr. Jimenez be immediately released to protect him from the disproportionate risk of infection within prison walls. His age and HIV status put him at grave risk of serious illness or death if he contracts the coronavirus. Lastly, Mr. Jimenez requests not a complete termination of his sentence but only that his five-year period of post-release supervision commence early. He would remain under close supervision to support and monitor his reentry transition. For these reasons, we urge the Executive Clemency Bureau to approve Mr. Jimenez’s application and order his immediate release from prison.
Thank you for your expeditious consideration of Mr. Jimenez’s application. If there is any other information about this request that I can provide, please feel free to contact me by email at [email protected], or by phone at (646) 592-3633.
Respectfully submitted,
Ying-Ying Ma Staff Attorney
Criminal Appeals Bureau 199 Water Street New York, NY 10038 (212) 577-3564 www.legal-aid.org
Elizabeth Sack Felber Supervisor Wrongful Conviction Unit (212)298-3143 [email protected]
John K. Carroll April 17, 2020 President
Janet E. Sabel Attorney-in-Chief New York State Department of Corrections and Community Supervision Chief Executive Officer Executive Clemency Bureau Justine M. Luongo Harriman State Campus Attorney-in-Charge 1220 Washington Avenue Criminal Practice
VIA E-MAIL:
Re: Executive Clemency Application Bruce Johnson, DIN 92A9747; DOB 10/8/67; NYSID #05397604R; , Indictment Number 3008/91
To the Executive Clemency Bureau:
We write to request executive clemency for Bruce Johnson because he suffers from medical conditions that make him especially vulnerable to the effects of COVID-19, he is close to his release date, and has a strong discharge plan. Mr. Johnson, who currently resides at Woodbourne Correctional, is only four months away from being eligible for release on parole, having already served 28 years of a 30 to life sentence for a murder conviction from 1992. Mr. Johnson is currently working with the Legal Aid Society Wrongful Conviction Unit hoping to achieve his exoneration. He has always maintained his innocence and continues to work to obtain exoneration, despite knowing that by challenging the 1992 conviction he risks serving more time than he would otherwise. Additionally, having achieved tremendous personal growth, Mr. Johnson has strong community and family support and a solid discharge plan. Indeed, he has become a role model and a leader in his own right. Because of both his accomplishments and medical vulnerabilities, as well as the fact that he is months away from his earliest release date, Mr. Johnson is a deserving candidate for clemency.
Mr. Johnson’s Suffers from a Number of Medical Conditions That Make Him Particularly Susceptible to the Effects of COVID-19
Dr. , an infectious disease doctor currently treating COVID-19 patients at , reviewed Mr. Johnson’s medical history and confirmed that Mr. Johnson faces extreme risk if he remains at Woodbourne.1 Dr. Rose affirms that “older patients with pulmonary
1 Exhibit A: Letter from .
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and cardiovascular diseases, including asthma, hypertension, diabetes, and coronary artery disease . . . [are] most likely to suffer the negative consequences of COVID-19: older patients with pulmonary and cardiovascular diseases, including asthma, hypertension, diabetes, and coronary artery disease. This description of our most vulnerable population, could double as a word-for-word description of Mr. Johnson.” Dr. concluded that if the pandemic spreads to prisons as predicted, the decision to grant clemency “could prove to be life-saving” (emphasis added).
First, Mr. Johnson, 52, suffers from a serious heart condition which, after he contracted the flu, led to his hospitalization in February of 2018. At that time, doctors at Albany Medical Center performed a cardiac catheterization in an attempt to diagnose and treat a still-unidentified heart problem. Although his doctors were never able to determine the cause of his heart problems, Mr. Johnson was prescribed a number of medications, including Lisinopril, Amlodipine, and Hydrochlrothiazide to help regulate his heart condition and blood pressure. Recently, Mr. Johnson went to the hospital for an echocardiogram. The doctors reported that they saw no change in his condition and kept him on his current medications. Second, Mr. Johnson suffers from asthma. He takes prescribed doses of Flovent and Proventil via an inhaler to treat this condition. Third, Mr. Johnson is pre-diabetic and regularly takes prescribed Metformin.
Mr. Johnson Has A Solid Discharge Plan and Support from Both the Fortune Society and His Loving Family
Mr. Johnson is married to Carrie Johnson, a licensed nurse who currently volunteers at Jewish Board Nursing Home. They have been married eighteen years and have two daughters. Mr. Johnson is an integral part of their daily family life: helping his daughters with their homework, conferencing with their school teachers, and giving them personal advice. Ms. Johnson continues to be a committed advocate on her husband’s behalf and will provide the necessary financial, emotional, and social support during and after Mr. Johnson’s transition.2 If released, Mr. Johnson would return to his family at their residence at 2090 Morris Avenue, Bronx NY 10453. The has also promised him reentry and health services.3 The will provide Mr. Johnson, as needed, with a Career Coach, assistance with parole management, and connection with one of their Community Health Worker.
2 Exhibit B: Carrie Johnson Letter of Support. 3 Exhibit C: Letter of Support.
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Mr. Johnson is a strong candidate for stable employment, as he not only has an associate’s degree but also earned a bachelor’s degree in Social Studies from 4 In addition, he has gained other vocational skills during his time as a porter, an industries worker, a laundry operator and a clerk. His most recent position, clerk for – where he has multiple managerial responsibilities5 – is indicative of his readiness for employment in the community.
Mr. Johnson’s work as a mentor and leader in several workshops has led him to pursue a position in the Social and Behavioral Science fields where he hopes to use his own experiences to affect positive change on those still incarcerated.
Bruce Johnson Has Always Maintained His Innocence and is Working with Our Wrongful Conviction Unit to Achieve His Exoneration
On December 22, 1990, Antonio Arce was murdered on the corner of Sutphin Avenue and 107th street near the meat shop that he owned. From the start, there were problems with the prosecution’s case.
First, there was no physical evidence connecting Mr. Johnson to the crime: no videotape, no DNA and no fingerprints. The only evidence was the most unreliable kind: eyewitness testimony by strangers making identifications months after the crime. Here, the earliest eyewitness identification occurred in March, over two months after the incident. Strangely, eighteen months after the shooting and on the eve of trial, two witnesses – mother and daughter – came forward and, at trial, identified Mr. Johnson in person for the first time. Even in the best of circumstances, stranger identification testimony is notoriously unreliable, but studies show that a prolonged delay between the time of the crime and the identification, make that identification all the more unreliable.6
4 His transcripts are available for review. 5 As a clerk, Mr. Johnson is responsible for maintaining computer lab call-outs, issuing and retrieving course books and materials, ordering supplies, maintaining and monitoring printer operations, supervising the library, posting events and appointments, tutoring, mediating with security, education supervisor and school area secretary and assisting coordinating Bard special events and outside guest appearances. 6 Studies showed the number of false identifications rose by 93% when witnesses viewed suspect 56 days after viewing incident. “Eyewitness Identification – Photographs and Live Models” Egan, Pittner and Goldstein, Law and Human Behavior, Vol. 1, No. 2, 1977.
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Not surprisingly, that and other evidence was contradictory and did not match Mr. Johnson. Police reports indicate that the shooter had a Jamaican accent; Mr. Johnson is not ethnically Jamaican, and, does not speak with any accent.7 A 911 caller stated that the shooter was Haitian.8 Mr. Johnson is not ethically Haitian.
Police reports indicate that Mr. Arce’s death was the result of a failed robbery by two to four males, but Mr. Johnson was the only one arrested for this crime. The ballistics reports confirm that there were at least two nine millimeter pistols used in the robbery, but no weapon was ever recovered. The re-investigation conducted so far has revealed that one supposed eyewitness could not have seen what she said she saw at nighttime, because of the distance of her apartment window from the scene.
Mr. Johnson Personal Accomplishments
While maintaining his innocence, Mr. Johnson takes full responsibility for the life style that he led up to the time of this arrest. He is not proud of his conduct during those years, nearly 30 years ago, and has taken concrete steps to obtain an education and become the honorable person that he is today. Towards that end, he participated in several therapeutic workshops, including the Residential Substance Abuse Treatment program and the Frontline Aggression Workshop. After being trained as a facilitator for the Alternatives to Violence Project and Hope Lives for Lifers Sentencing, which was provided by the American Friends Service Committee, Mr. Johnson became a facilitator, creating curriculum for some of the workshops and conducting workshops in others.
His disciplinary record also reflects his transformation. Most of his disciplinary tickets were given during the first five years of his incarceration, at least twenty-two years ago. As he grew older, Mr. Johnson has put aside his frustration for being wrongly incarcerated and demonstrated his ability to follow the prison rules. In the past six years, he has not received a single disciplinary ticket.
Mr. Johnson’s growth as an individual and a role model for others is a clear product of Mr. Johnson’s conscious pursuit of accountability and personal development. He fully understands the importance of making positive contributions to his community and being present for his family. Last December, Mr. Johnson’s son tragically died from gun violence. Now more than ever, Mr. Johnson wants to be, as he has been from a distance while incarcerated, a consistent and positive presence at home. The crime he was convicted for is serious, but he has served 28 years, more than his age when he was first arrested for this crime. While he has always maintained his innocence for the
7 All DD5s and police records are available if needed to review.
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crime for which he is now incarcerated, he takes responsibility for the life he led at that time, and he has truly turned his life around.
Mr. Johnson’s medical conditions put him at a very high risk of death should he contract COVID-19, his record of accomplishments speak for itself, and his personal transformation is impressive. Given that he is four months from his earliest release date, rather than remain in prison where this pandemic threatens his life, we respectfully ask the Board to recommend clemency for Bruce Johnson.
Respectfully submitted,
Elizabeth S. Felber
Elizabeth S. Felber Supervising Attorney Wrongful Convictions Unit The Legal Aid Society 199 Water Street New York, New York. 10038 [email protected] (917) 363-3660
/s/ Nicolas Rodriguez Nicolas Rodriguez Law Clerk
Jordann Feinstein
Jordann Feinstein Intern Columbia University, Class of 2020
Criminal Appeals Bureau 199 Water Street, 5th Fl. New York, NY 10038 (212) 577-3564 www.legal-aid.org
Tomoeh Murakami Tse Staff Attorney Cell: (646) 584-7046 April 17, 2020 [email protected]
Janet E. Sabel VIA EMAIL Attorney-in-Chief Chief Executive Officer New York State Department of Corrections and Community Supervision Justine M. Luongo Executive Clemency Bureau Attorney-in-Charge Criminal Practice The Harriman State Campus – Building 2 1220 Washington Avenue David Loftis Attorney-in-Charge Albany, NY 12226-2050 of Post-Conviction and Forensic Litigation
Re: Emergency Clemency Application—Supplemental Malik Jones, DIN: 15-A-1050, NYSID: 05973940P, Ind. No. 2139/14
To the Executive Clemency Bureau:
I am writing to supplement Malik Jones’s emergency clemency application dated April 7, 2020. Mr. Jones is a medically vulnerable individual who is incarcerated at Otisville Correctional Facility.
This supplement includes: 1. Letter by Ifeya Johnson, dated April 11, 2020, attached as Exhibit 1, and 2. Letter by Armil Daniels, dated April 16, 2020, attached as Exhibit 2.
These letters address Mr. Jones’s release plans, including that he has access to stable housing and employment.
Ms. Johnson is Mr. Jones’s mother, who is a supervising intensive care nurse at a large hospital in Atlanta, GA. She owns a single-family home in nearby Snellville, GA, and confirms that Mr. Jones can live with her there, along with his partner Gabrielle Bracey, and their daughter Riley. The couple’s long-term plan has always been to raise Riley in Georgia, and Ms. Bracey and Riley have already been splitting their time in between Georgia, where they stay with Ms. Johnson, and New
Executive Clemency Bureau Page 2
York, where they stay with Ms. Bracey’s mother in Manhattan and visit Mr. Jones upstate.
As explained in Mr. Jones’s original clemency petition (attached here as Exhibit 3 for convenience), if permitted to be released to Georgia, he and his family is welcome to stay with Ms. Johnson for as long as necessary, until the couple is financially independent. If Mr. Jones is released to New York, he also has access to stable housing, at Ms. Bracey’s mother’s apartment in Lower Manhattan.
Mr. Jones has strong family support, including from his mother’s 11 brothers and sisters, who live in New York, North Carolina, and Georgia. In particular, two uncles in Georgia are in positions to provide Mr. Jones with employment upon his release. See Exhibit 1. Mr. Armil Daniels writes that as a supervisor at a company that restores buildings that have suffered water damage, he is able to bring Mr. Malik on as a an entry level employee and oversee his training. Exhibit 2.
We thank the Executive Clemency Bureau for its urgent review of Mr. Jones’s application and supplement. I am available on my cell phone, at (646) 584- 7046 to answer any questions.
Sincerely,
Tomoeh Murakami Tse
Tomoeh Murakami Tse
Kings County Criminal Defense Office 111 Livingston Street Brooklyn, NY, 11201 https://www.legalaidnyc.org/ Tel: (516) 554-1080 E-mail: [email protected]
John K. Carroll President
Janet E. Sabel Attorney-in-Chief Chief Executive Officer Via Email Justine M. Luongo Attorney-in-Charge Criminal Practice New York State Department of Corrections Dawn C. Ryan and Community Supervision Attorney–in–Charge Executive Clemency Bureau Kings County Office The Harriman State Campus – Building 2 1220 Washington Avenue Albany, NY 12226-2050
April 15, 2020
Re: Executive Clemency Application: Eric Lemons DIN# 17-R-2648
Dear Executive Clemency Bureau:
Mr. Eric Lemons is a 62-year-old man residing at Queensboro Correctional Facility—one of the facilities most affected by COVID-19—who suffers from type two diabetes and high blood pressure. His advanced age and underlying health conditions put him at high risk for having serious complications should he contract COVID-19. As of the date of this letter, Mr. Lemons is due to be released in just seven days, having served the vast majority of his three-year determinate sentence for Attempted Criminal Possession of a Weapon in the Second Degree, a Class D violent felony. Given the small amount of time remaining on his sentence, we plead for the Governor to release him from incarceration immediately so as to reduce his risk of becoming critically ill from the virus.
I. Summary of Applicant Details
• Name: Eric Lemons • Medical condition: Type two diabetes and high blood pressure • DIN: 17-R-2648 • DOB: 5/18/1957 • Indictment number: 005187-2016 • Crime of conviction: Attempted Criminal Possession of a Weapon in the Second Degree, P.L. 265.03. • County of conviction: Kings County • Sentence: Determinate three-year sentence • Time remaining on sentence: 7 days until conditional release
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II. COVID-19 is a Humanitarian Disaster and Mr. Lemons is a Prime Candidate for Release
The death toll in the United States presently stands at 26,000, the worst in the world, with New York accounting for nearly half of that total. Due to the serious nature of the virus, prosecutors and public health officials have called on the Governor’s office to release individuals from prison who (a) have less than 180 days remaining on their sentence, and (b) have pre-existing medical conditions that put them at heightened risk of becoming critically ill from the virus.1
Although all incarcerated individuals are at heightened risk of contracting the virus, Queensboro Correctional Facility is among the facilities most affected by the pandemic. A total of six people at Queensboro have tested positive for COVID-19, with one inmate needing to be hospitalized. Additionally, a civilian employee of the prison has died from the virus.2 The relatively high infection rate at Queensboro is no doubt due to the fact that the facility houses inmates in an open dormitory setting, with dozens of inmates being confined to a single room with beds no more than two feet apart. In other words, the layout of Queensboro makes social distancing impossible. The inability for inmates to socially distance at Queensboro is compounded by the fact that the use and availability of proper protective equipment is irregular, as is proper cleaning of communal spaces, which is left up to the discretion of the inmates themselves.
Mr. Lemons reports that the conditions at Queensboro have left him terrified. Both diabetes and high blood pressure, according to the Centers for Disease Control and Prevention (CDC), make catching the virus a consequence that would almost certainly require him to be hospitalized, with death being a real and frightening possibility.3 Having only seven days left on his sentence, and being at elevated risk of becoming critically ill from the virus, Mr. Lemons is a prime candidate for release.
III. Current Conviction, Prior Criminal History, and Mitigating Circumstances
During Mr. Lemons’s nearly three years incarcerated at Queensboro Correctional Facility, a minimum-security prison, he has never received a single disciplinary infraction. He reports that his primary desire upon release is to be with his family, and after self-quarantining for the required 14 days, hugging and kissing his friends and family that he has missed so dearly while incarcerated. Mr. Lemons states that he does not think he has many more years left to live, and wants to leave this
1 See Mary Bassett, DA Eric Gonzalez, and Daren Walker, Andrew Cuomo, Stop a Coronavirus Disaster: Release People From Prison, N.Y. Times (March 30, 2020); NYC Officials Call for Release of ‘Most at Risk’ on Rikers Island as More Test Positive for Virus, NBC N.Y. (March 18, 2020). 2 Courtney Gross, With No Plan to Reduce Population, Inmates Wait And Hope They Don’t Get Sick, https://www.ny1.com/nyc/all-boroughs/news/2020/04/07/with-no-plan-to-reduce-population--inmates-wait-and-hope- they-don-t-get-sick#, NY1 (April 6, 2020); David Brand, Demonstrators urge release of LIC prison inmates nearing end of sentences, https://queenseagle.com/all/queensboro-correctional-facility-covid19-rally, Queens Eagle (April 14, 2020). 3 People Who Are at Higher Risk for Severe Illness, Centers for Disease Control and Prevention, accessed April 15, 2020, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.
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Mr. Lemons’s crime of conviction, attempted criminal possession of a weapon, arises from Mr. Lemons’s misguided attempt to protect himself and his then girlfriend from bad elements in his East New York neighborhood. Mr. Lemons found the gun he was arrested with hidden in a cabinet of an apartment he was demolishing while working a construction job. Mr. Lemons’s decision to retain the gun was in part due to his fear of a then popular activity among the youths in his neighborhood of seriously assaulting and injuring elderly residents. This activity was reported in the media as the “knockout game,” the goal of the ‘game’ being to render strangers unconscious with blows to the head.4 Having developed a habit of taking the gun with him when venturing out at night, Mr. Lemons was armed when he tried to drag his girlfriend away from men who were supplying her with drugs and alcohol. Mr. Lemons’s attempt to physical remove his girlfriend from a bad situation led to a verbal altercation that caught the attention of the police and led to his arrest, upon which time the gun was discovered in his pants. Mr. Lemons’s prior arrest for weapons possession, which occurred two decades prior to the crime of conviction, was similarly motivated by a desire for protection from the dangerous and often predatory environment of East New York.5
Mr. Lemons confesses that he has learned the errors of his prior lifestyle, and describes himself as a man of God who wants nothing more in life to live out his remaining years with his family. During his term of incarceration, Mr. Lemons has participated in Aggression Replacement Treatment (“ART”), which has allowed him to deal with his underlying feelings of fear and anger that led him to seek out illegal weapons for protection. Moreover, Mr. Lemons’s advanced age makes it significantly less likely that he will go on to commit additional crimes once released, let alone violent crimes. Numerous research studies have demonstrated that the vast majority of individuals “age out” of criminal behavior with individuals over the age of 55 being the least likely to commit a crime.6
Accordingly, Mr. Lemons is a low risk of re-offense, and in any event, has served the vast majority of his term of incarceration for his crime of conviction.
4 Deadly "knockout game": what it is and why teens are playing it, CBS News, https://www.cbsnews.com/news/deadly- knockout-game-what-it-is/ (November 21, 2013). 5 Mr. Lemons’s arrest for attempted murder when he was only 28 years old was never submitted to a grand jury and was ultimately dismissed. Mr. Lemons’s states that the arrest was a simple matter of mistaken identity. 6 See, e.g., Caitlin Cornelius et al., Aging Out of Crime: Exploring the Relationship Between Age and Crime with Agent Based Modeling at 1, http://scs.org/wp-content/uploads/2017/06/6_Final_Manuscript.pdf (“The relationship between age and crime is one of the most solid within the field of criminology.”); David Farrington, Age and Crime, 7 Crime and Justice 189, 235 (1986) (“The perceived costs of crime increased greatly as [inmates] got older, not only in terms of the increased likelihood of lengthy prison sentences, but also in terms of the consequent risk of losing their families.”); Michael Rocque et al., Age and Crime at 1, Encyclopedia of Crime and Punishment (Dec. 2015).
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IV. Re-entry Plans and Family Support
Mr. Lemons continues to enjoy the love and support of his extended family, including his step- son who has already agreed to provide him with housing and transportation from Queensboro Correctional Facility to his home in East New York. In the long-term, Mr. Lemons plans to move back into a home owned by his aunt that is currently being renovated due to a fire that occurred there several months ago. Additionally, Mr. Lemons states that his family is fully committed to helping him transition into life after incarceration and provide him with monetary support until he can get back on his feet. Mr. Lemons’s transition plans have been several months in the making given his immanent release date.
V. Conclusion
Mr. Lemons has paid his debt to society. Requiring Mr. Lemons to serve the remaining 7 days of his sentence under conditions that are perilous to his health would serve no legitimate societal interest and would constitute unduly cruel punishment for his crimes. Accordingly, we respectfully request that Mr. Lemons be immediately released. Thank you for your attention to this matter. Please do not hesitate to contact us with any questions.
Yours truly,
Adam Elewa Staff Attorney c.c.:
Kings County Criminal Defense Office 111 Livingston St, 9th Floor Brooklyn, NY 11201 https://www.legalaidnyc.org/
John K. Carroll President
Janet E. Sabel Attorney-in-Chief Chief Executive Officer Via Email Justine M. Luongo Attorney-in-Charge Criminal Practice
Dawn Ryan New York State Department of Corrections Attorney–in–Charge and Community Supervision Kings County Office Executive Clemency Bureau The Harriman State Campus – Building 2 1220 Washington Avenue Albany, NY 12226-2050
April 16, 2020
Executive Clemency Application Tyrone Munford DIN# 18-R-0110
Dear Executive Clemency Bureau:
This application is on behalf of Mr. Munford, a 58-year-old man currently incarcerated at Gowanda Correctional Facility and 9 days away from release. His age puts him at high risk for having serious complications should he contract COVID-19. Given the rapid spread of the virus in New York’s jails and prisons, we plead with the Governor for Mr. Munford’s immediate release. Although he is only 9 days away from his scheduled release date, each day in custody presents a serious risk of contracting COVID-19. In this time of crisis, each day counts.
Conditions at Gowanda Correctional Facility
There is real concern about a potential outbreak of COVID-19 at Gowanda Correctional Facility. As of April 16, 2020, 693 DOCCS employees have tested positive for the virus, as well as 165 people incarcerated in DOCCS facilities. Five incarcerated people have died as a result of the virus in DOCCS custody.1 Prison staff in New York are currently contracting the virus at double the rate of the general population.2 These numbers are increasing rapidly every day.
Mr. Munford reports that at least four incarcerated people at Gowanda Correctional Facility are known to have the virus. He worries that other incarcerated people or officers have contracted it as well.
1 https://doccs.ny.gov/doccs-covid-19-report (Accessed April 16, 2020) 2 https://www.wivb.com/news/local-news/state-prison-staff-contracting-coronavirus-at-double-the-rate-of-the-general- population/ (Accessed April 14, 2020)
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The CDC has put out much guidance on how to avoid contracting the virus that many New Yorkers now religiously follow. This includes frequent hand washing and/or hand sanitizing, avoiding large gatherings of people, staying at least 6 feet away from other individuals, and frequently disinfecting commonly used surfaces.3 Governor Cuomo’s latest Executive Order now also requires people to wear a mask or face covering in public.4 Much of this guidance is impossible for Mr. Munford to follow in Gowanda Correctional Facility.
Mr. Munford reports that he and other incarcerated people do not have any access to hand sanitizer, and only limited access to soap. Incarcerated people at Gowanda Correctional Facility do not have access to masks. The correctional officers have masks but are not consistently wearing them. Gowanda Correctional Facility also has attempted to implement social distancing measures, such as requiring people to eat meals in their rooms instead of instead the mess hall, but there are times where gatherings still occur.
Despite DOCCS’s efforts to slow the spread of the virus, Mr. Munford still has a high chance of contracting the virus in prison, due to the very nature of prisons themselves. According to Gregg Gonsalves, an epidemiology professor at Yale School of Public Health, “it is nearly impossible to provide infection control in [prisons]...if you wanted to set up a situation that would promote rapid transmission of a respiratory virus, you would say prison.”5 Notably, the Brooklyn District Attorney’s Office and the former New York City Health Commissioner have recognized this. They warned that the conditions in New York state prisons are a “public health crisis that threaten to become a humanitarian disaster.” They recommended that the Governor grant early parole to those within 180 days of completing their sentences.6
Mr. Munford is 9 days away from release, and has re-entry plans in place. He is ready to return to society, and need not spend any more time in a facility that jeopardizes his health.
Conviction, Incarceration, and Plans for Release
Mr. Munford was arrested on 4/5/17 and has been incarcerated ever since. He was convicted of several non-violent felonies on 11/29/17: Conspiracy in the 4th Degree, Criminal Possession of a Controlled Substance in the 3rd Degree, and Criminal Possession of a Firearm. He was sentenced to 3 years to 3.5 years on 1/10/18. He is eligible for conditional release, and that date is currently set for 4/25/20 – nine days from now.
During his incarceration he has worked hard to prepare himself for his eventual release and return to society. He has successfully completed several programs at Gowanda Correctional,
3 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (Accessed April 13, 2020) 4 https://www.msnbc.com/msnbc/watch/cuomo-issues-executive-order-for-masks-to-be-worn-in-public-82074693713 (Accessed April 16, 2020) 5 https://www.newyorker.com/news/news-desk/it-spreads-like-wildfire-covid-19-comes-to-new-yorks-prisons (Accessed April 10, 2020) 6 https://www.nytimes.com/2020/03/30/opinion/nyc-prison-release-covid.html (Accessed April 15, 2020)
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including ASAT, ART, “Phase II: Back to Society”, and a program where he learned skills related to building maintenance. Throughout his two plus years at Gowanda Correctional, Mr. Munford has only received two disciplinary tickets. Both were for minor, non-violent infractions.
Mr. Munford hopes to use the skills he has acquired in prison to find work in the community. He would like to find a job doing construction or handiwork. In the meantime, he plans to return home to his wife. He reports that she has been supportive of him throughout his incarceration, and that she wants to help him find work once he is released. Mr. Munford would also enjoy the support of his five adult children upon release. They would not live with him and his wife, but all live in New York State and maintain a close relationship with Mr. Munford.
* * * Mr. Munford has paid his debt to society. Requiring Mr. Munford to serve the remaining 9 days of his sentence under conditions that are perilous to his health serves no legitimate societal interest. Accordingly, we respectfully request that Mr. Munford be immediately released. Thank you for your attention to this matter. Please do not hesitate to contact us with any questions.
Sincerely,
/s/ Hannah Pinto ______
HANNAH PINTO The Legal Aid Society 111 Livingston Street Brooklyn, NY 11201 646-734-5452 [email protected]
/s/ Joseph Lavine ______
JOSEPH LAVINE The Legal Aid Society 111 Livingston Street Brooklyn, NY 11201
Cc: Joshua Norkin (
Criminal Appeals Bureau 199 Water Street, 5th Fl. New York, NY 10038 (212) 577-3564 www.legal-aid.org
Lauren E. Jones Staff Attorney T (212) 577-7955 April 17, 2020 F (646) 514-1463 [email protected]
VIA EMAIL Janet E. Sabel Attorney-in-Chief Chief Executive Officer
New York State Department of Corrections Justine M. Luongo Attorney-in-Charge and Community Supervision Criminal Practice Executive Clemency Bureau The Harriman State Campus – Building 2 David Loftis 1220 Washington Avenue Attorney-in-Charge Albany, NY 12226-2050 of Post-Conviction and Forensic Litigation
Supplement to Executive Clemency Application: Samuel Pinckney DIN# 18-A-0100
Dear Executive Clemency Bureau:
Since submitting our April 3, 2020, clemency application, we have received Mr. Pinckney’s medical records from the Department of Corrections and Community Supervision. The records confirm that 61-year-old Mr. Pinckney has a history of Chronic Obstructive Pulmonary Disease (“COPD”), asthma, heart disease, peripheral neuropathy, and Gastroesophageal Reflux Disease, among other conditions (Medical Problem List by Type, attached as Exhibit A; Diagnostic Assessments, April 23, 2016, and Ambulatory Health Record Progress Note, April 7, 2020, attached as Exhibit B). For asthma and COPD, he is prescribed Advair and Albuterol (Medication List, attached as Exhibit C). DOCCS has assigned him medical classification level 2, which indicates that his medical conditions are serious enough to require that his facility have a physician on-site or on-call 24 hours a day (Exhibit A).
In total, we now have 334 pages of medical records, which document, among other things, Mr. Pinckney’s treatment for peripheral neuropathy, his repeated complaints of chest pain, and DOCCS’s ultimate decision to terminate cardiac care in spite of those complaints. We can provide any additional records upon request.
We have also recently received DOCCS records confirming Mr. Pinckney’s achievements of selection as an Inmate Program Associate in Electrical Trades and his successful completion of Alcohol and Substance Abuse Treatment (Inmate Program Assignment Records, attached as Exhibit D). Not only did he complete ASAT, but he also held a leadership position, further demonstrating that he has been a model inmate (Substance Abuse Treatment Continuing Recovery Plan, attached as
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Exhibit E). The records also confirm that Mr. Pinckney has had no disciplinary infractions while at Five Points Correctional Facility (Inmate Disciplinary History, attached as Exhibit F).
We thank the Executive Clemency Bureau for its urgent consideration of Mr. Pinckney’s application. I am available at (917) 922-7829 (cell) to answer any questions.
Sincerely,
Lauren E. Jones Staff Attorney Criminal Appeals Bureau 199 Water Street New York, NY 10038 (212) 577-3564 www.legal-aid.org
Tel: (646) 630-1875 [email protected]
Janet E. Sabel Attorney-in-Chief Chief Executive Officer April 17, 2020 Justine M. Luongo Attorney-in-Charge VIA EMAIL Criminal Practice DOCCS Executive Clemency Bureau David Loftis Harriman State Campus Attorney-in-Charge 1220 Washington Avenue of Post-Conviction and Forensic Litigation Albany, New York 12226
Re: Carl Smith: Emergency Clemency Petition; DOB: 3/12/65; DIN: 16A2564; Ind. #07936/11 and 10308/14
Dear Executive Clemency Bureau:
I submit this emergency application on behalf of Carl B. Smith, who is 55 years old and very severely asthmatic. He is serving a sentence of 9 to 18 years for non-violent financial theft offenses arising out of the sale of real property in Brooklyn. He is scheduled for a Parole Hearing Merit Release Appearance in July 2021, but his age and asthma put him at a high risk of contracting COVID-19. In addition, his continued incarceration puts all those who come in contact with him, inmates as well as staff, in danger of contracting the disease. We respectfully seek a commutation of his sentence and early release, with an ankle bracelet, if necessary, to eliminate his risk of dying in prison.
Summary of Mr. Smith’s Medical Conditions
Mr. Smith has suffered from serious chronic asthma all his life, with particularly severe attacks in the spring and summer. In addition, he now has high blood pressure, has been diagnosed as borderline diabetic, and, according to his sister, is overweight. All these factors place him at high risk of contracting COVID-19. The following list of his daily medications, with the drug manufacturers’ recommendations, underscore the severity of his condition: Advair (“treats two of the main causes of asthma symptoms—airway constriction and airway inflammation—to help prevent symptoms”); Albuterol (“used to treat or prevent bronchospasm, or narrowing of the airways in the lungs, in people with asthma”); Triamcinolone (a corticosteroid “works by blocking the release of certain natural substances that cause allergy symptoms”); Chlorphen (“used to relieve symptoms of allergy”); and Amlodipine (“used to treat chest pain (angina) and other conditions caused by coronary artery disease” and “high blood pressure (hypertension)”).
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The Centers for Disease Control (“CDC”) recognize that “people of all ages with underlying medical conditions,” and particularly “chronic lung disease or moderate to severe asthma,” are at a higher risk of contracting COVID-19. https://www.cdc.gov/coronavirus/2019-ncov/need-extra- precautions/groups-at-higher-risk.html. Indeed, COVID-19 can affect the respiratory tract – nose, throat, lungs – causing asthma attacks that in turn may lead to pneumonia and acute respiratory failure. Diabetes and high blood pressure are additional risk factors identified by the CDC as creating an increased risk of contracting the disease. Mr. Smith’s medical condition places him at a high risk of contracting COVID-19. To avoid the disease, he must practice social distancing and, at Mohawk Correctional Facility, that is impossible.
Current Living Conditions
We know – and the Governor reminds New Yorkers daily – that social distancing and the ability to wash your hands with soap and hot water are key to avoiding the spread of the virus. During a recent telephone conversation, Mr. Smith described his current living conditions. He lives in a dormitory of open cubicles with 53 men. The cubicles have thin metal dividers and have space for a bed, a locker, and a chair. He estimates that there is less than 6 feet between beds. In addition, his dormitory is not separated from the recreation room and there is no movement control. As a result, he is in proximity of not only the men in his dormitory but those in the recreation room.
Sanitary precautions to avoid the spread of the virus have been limited. While the facility recently limited the number of inmates sitting at a table in the dining hall from 6 to 3 per table, the line to get to the dining room has not changed. Showers are sprayed with bleach but that is the extent of the measures taken. There are no masks or hand sanitizers.
Record in Prison
The offense in this case – grand larceny of real property – can be described as a white collar crime in the sense that it was a non-violent crime committed for financial gain. See https://www.merriam- webster.com/dictionary/white-collar%20crime (crime committed by “persons in business and that usually involves a form of financial theft or fraud”). Predictably, Mr. Smith’s adjustment to prison life was difficult. However, since 2018, he has had no problems. While his earliest release date is May 2023, he is eligible for a Parole Hearing and a Merit Release Appearance in July 2021 (see inmate lookup).
Housing Plan Upon Release
Mr. Smith is very close to his sister and children, his son in particular. Should he be released, he would live with his 60 year old sister, Phyllis Smith. For the past 20 years, she has been employed as a social worker for the Department of Veterans Affairs.. As she told me on the phone recently, at the
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beginning, she dealt primarily with the geriatric veterans assisting them in accessing benefits such as housing and nursing home services. In the past few years, she has been handling more administrative matters.
Phyllis Smith is currently on leave from her job because she just had cardiac surgery after suffering a heart attack. She would not only welcome her brother home but she would feel much safer if he were with her. She lives in a cooperative apartment building in Brooklyn where Mr. Smith will have his own room should he have to be quarantined upon his release.
The Offense and Sentence
As mentioned above, the offenses were non-violent financial crimes. Mr. Smith was convicted after trial of second- and third-degree grand larceny, offering a false instrument for filing, and lesser offenses “in connection with the theft of three separate parcels of real property.” People v. Smith, 171 A.D.3d 1101 (2d Dept. 2019). The prosecution proceeded under a novel theory of grand larceny, arguing that the filing of a void deed describing a certain property amounted to grand larceny of the property itself. Id. Mr. Smith was convicted and sentenced to the maximum permissible term of 7.5 to 15 years on the second-degree grand larceny counts – the minimum was 1.5 to 3 years – to run consecutively with a sentence of 1.5 to 3 years imposed on one third-degree grand larceny count. The judgment was affirmed on appeal. Id.
At this point, Mr. Smith has already served 6 years of his sentence, twice the legal minimum sentence. He is scheduled for Merit Release Appearance in July 2021. However, given the spread of the COVID-19 pandemic, his severe asthma and high blood pressure, there is a very high probability that he will contract the virus in prison. If he does, he will die in prison. We respectfully request that Governor Cuomo commute his sentence and order him released, if necessary, with an ankle bracelet to live with his sister who needs him.
If there is any other information about this request that I can provide, please feel free to contact me at [email protected] or (646) 630-1875. Thank you for your consideration.
Respectfully,
Natalie Rea
Natalie Rea Staff Attorney
Criminal Appeals Bureau 199 Water Street New York, NY 10038 (212) 577-3564 www.legal-aid.org
Whitney Elliott, Staff Attorney Tel (917) 922-7601 Fax (646) 616-4615 [email protected] April 17, 2020 John K. Carroll SENT BY EMAIL: President Janet E. Sabel DOCCS Executive Clemency Bureau Attorney-in-Chief Chief Executive Officer Harriman State Campus 1220 Washington Avenue Justine M. Luongo Attorney-in-Charge Albany NY 12226 Criminal Practice
Re: Emergency Clemency Petition on Behalf of Benjamin Torres David Loftis Attorney-in-Charge DIN 19-R-1360 of Post-Conviction and Forensic Litigation DOB: 06/06/1961 New York County Ind. Nos. 114N/2018 and 90N/2019 Scheduled release date: 05/09/20 Place of confinement: Ogdensburg Correctional Facility
To Whom It May Concern:
The Legal Aid Society respectfully requests that Mr. Benjamin Torres’s sentence be commuted so as to authorize his immediate release from prison. Mr. Torres is a 58-year-old, HIV positive man, who is currently serving a two-year sentence on convictions for criminal possession of a controlled substance in the third degree, and an attempt to commit that same crime. Neither offense involved any violence at all. Mr. Torres is scheduled to be released on May 9, 2020. He thus falls squarely within the group of individuals who Governor Cuomo has stated would merit release in light of the COVID-19 pandemic: (1) he is over 55 years old, (2) he is within 90 days of release, and (3) his underlying crime was not a violent felony or a sex offense. Even beyond those three factors, Mr. Torres is medically vulnerable as an HIV positive man. He also has an exemplary prison record. We thus respectfully request that he be immediately released.
Given the current coronavirus/COVID-19 crisis, Mr. Torres is at risk of serious medical complications should he contract the virus. As noted above, he is 58 years old, a fact that itself increases his risk of having such complications. See E.J. Mundell, Odds of Hospitalization, Death with COVID-19 Rise Steadily With Age: Study, U.S. News, Mar. 30, 2020 (quoting co-author of recent Lancet article as stating that “[o]ur analysis very clearly shows that at age 50 and over, hospitalization is much more likely than in those under 50, and a greater proportion of cases are likely to be fatal”).1 In addition, Mr. Torres is HIV positive. Although his HIV is stable, that does not mean the condition poses no risks to him in light of the COVID-19 pandemic. The CDC itself
1 Available at https://www.usnews.com/news/health-news/articles/2020-03-30/odds-of-hospitalization-death-with-covid- 19-rise-steadily-with-age-study
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has stated that “the risk of serious illness from COVID-19 for people with HIV is not known.”2 Mr. Torres should not have to bear the medical risks created by that uncertainty.
COVID-19 continues to spread within the New York State prison system. As of April 16, 2020, DOCCS reported that 693 staff members and 165 incarcerated individuals had tested positive for COVID-19, while one staff member and five incarcerated individuals had, tragically, died. Just four days before that, DOCCS had reported that 552 staff members and 131 incarcerated individuals had tested positive, while three incarcerated individuals had died (along with the same one staff member).3 Thus, the number of individuals affected by the virus continues to grow—just about every day. The disease has also reached the City of Ogdensburg, as the president of the New York Correctional Officer & Police Benevolent Association—who is also a sergeant at Riverview Correctional Facility in Ogdensburg, and a member of the Ogdensburg city council—has tested positive for the virus.4 Mr. Torres’s non-violent drug offenses for which he received one and one- half and two year (concurrent) sentences do not justify subjecting him to the risk of death that COVID-19 poses, especially where he is so close to his release date.
In addition, Mr. Torres has an exemplary prison record. He has not had a single disciplinary infraction since starting his sentence. He has also done over 400 hours of janitorial work at his facility. Much of his work was done in the facility’s front lobby and outside reception area because of DOCCS’s recognition that he posed a low-risk of violating any prison rules.
Finally, the relief Mr. Torres requests is limited. Authorizing his immediate release would only reduce his sentence by a matter of weeks. Upon release, he will still be required to serve three years of post-release supervision.
For all of these reasons, we respectfully request that Mr. Torres’s sentence be commuted so as to authorize his immediate release from prison. If there is any other information about this request that I can provide, please feel free to contact me at [email protected], or (917) 922-7601. Thank you for your consideration.
Respectfully submitted,
/s/ Whitney Elliott, Staff Attorney
Exh. A – presentence report
2 CDC, What to Know about HIV and COVID-19, https://www.cdc.gov/coronavirus/2019-ncov/need-extra- precautions/hiv.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecific- groups%2Fhiv.html 3 Andrew Derminio, Alarming Number of COVID-19 Cases Confirmed at Marcy Correctional, WIBX 950am, Apr. 13, 2020, https://wibx950.com/alarming-number-of-covid-19-cases-confirmed-at-marcy-correctional/ 4 WWNY, NYSCOPBA union head, Ogdensburg city councilor, tests positive for COVID-19, Mar. 30, 2020, https://www.wwnytv.com/2020/03/30/nyscoba-renews-calls-protective-gear-union-head-tests-positive-covid-/
Criminal Appeals Bureau 199 Water Street, 5th Fl. New York, NY 10038 (212) 577-3564 www.legal-aid.org
Tomoeh Murakami Tse Staff Attorney Cell: (646) 584-7046 April 16, 2020 [email protected]
Janet E. Sabel VIA EMAIL Attorney-in-Chief Chief Executive Officer New York State Department of Corrections and Community Supervision Justine M. Luongo Executive Clemency Bureau Attorney-in-Charge Criminal Practice The Harriman State Campus – Building 2 1220 Washington Avenue David Loftis Attorney-in-Charge Albany, NY 12226-2050 of Post-Conviction and Forensic Litigation
Re: Emergency Clemency Application Elsun Wheeler, DIN: 16-A-1609, DOB: 08/01/91, Ind. No. 8985/14 (Kings Co.)
To the Executive Clemency Bureau:
I write to request the immediate release of Elsun Wheeler, a medically vulnerable individual who is incarcerated at Elmira Correctional Facility. Mr. Wheeler suffers from chronic asthma, which puts him at a very high risk of experiencing complications, including death, if he contracts the novel coronavirus. Mr. Wheeler has strong family ties, and access to stable housing upon his release. Given current prison conditions under the threat of widespread coronavirus contagion, further incarceration is unduly harsh and punitive. Mr. Wheeler should be quickly released.
Mr. Wheeler’s Medical Condition:
Mr. Wheeler has suffered from asthma since he was a child. DOCCS’s medical personnel have prescribed an albuterol inhaler to help him breathe, which he uses on a regular basis. Prior to his incarceration, Mr. Wheeler was also prescribed two additional medications, including the oral asthma medication Singulair, which he took daily. Mr. Wheeler is also hearing impaired. See Exhibit A.
The cold and the flu have always aggravated Mr. Wheeler’s asthma. During those times, he experiences wheezing, shortness of breath, and has difficulty breathing. It is
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well-recognized that the respiratory condition puts Mr. Wheeler at greater risk for serious illness from COVID-19. According to the Centers for Disease Control and Prevention (“CDC”), medically vulnerable people include those “with chronic lung disease or moderate to severe asthma,” serious heart conditions, severe obesity, or underlying medical conditions such as diabetes, renal failure and liver disease. CDC, Coronavirus Disease 2019: People Who Are at Higher Risk for Severe Illness.1 (emphasis added). See also Coronavirus Disease 2019: People with Moderate to Severe Asthma, CDC (“People with asthma may be at higher risk of getting very sick from COVID-19. COVID-19 can affect your respiratory tract (nose, throat, lungs), cause an asthma attack, and possibly lead to pneumonia and acute respiratory disease.”).2
Given Mr. Wheeler’s condition, he should be released as soon as possible. See United States v. Powell, No. 1:94-cr-316-ESH, Dkt. No 98 (D.D.C. Mar. 28, 2020) (in light of COVID-19, granting release motion filed by inmate with respiratory problems, including sleep apnea and asthma); Fraihat v. Wolf, 20-cv-590 (TJH) (C.D. Cal., Mar. 30, 2020) (in immigration habeas proceeding, granting release to detainee with asthma and other ailments, noting that release is in the public interest, and stating, “in the time of a crisis, our response to those at particularly high risk must be with compassion and not apathy. The Government cannot act with a callous disregard for the safety of our fellow human beings”).
The Coronavirus and Conditions at Elmira Correctional Facility
There is no cure for COVID-19, or any known medication to prevent or treat infection. The only known methods to reduce the risk to vulnerable people are to prevent infection in the first place, through social distancing and improved hygiene.
1 Available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at- higherrisk.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov %2Fspecific -groups% 2F people-at-higher-risk.html (last visited Apr. 7, 2020).
2 Available at https://www.cdc.gov/coronavirus/2019-ncov/needextraprecautions/asthma.html ?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecific- groups%2Fasthma.html (last visited Apr. 7, 2020).
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Mr. Wheeler tries to follow these methods. After the pandemic hit, he fashioned a mask with his handkerchief, but was ordered to remove it because inmates are not allowed to have their faces covered. Then, this past week, prison officials gave out white handkerchiefs that inmates were permitted to use as masks. See DOCCS COVID- 19 Report: What DOCCS Is Doing (DOCCS announcing it would be permitting inmates to “use state-issued handkerchiefs as masks”).3 However, these handkerchiefs are not large enough to tie around his head, and Mr. Wheeler is waiting for a fellow inmate who is skilled at sewing to make a mask for out of the material for him.
While there is staggered meal and yard times now—about 150 inmates go out to the yard at one time, not 300—crowding remains an issue. In the mess hall, inmates are instructed to sit in every other seat—but the inmates on either side of Mr. Wheeler are still less than an arm’s distance away.
In the Field House, where Mr. Wheeler showers, 17 showerheads are spaced closely together, and it is difficult to avoid bumping into people while washing. There is only bar soap—not the liquid soap recommended by experts. See CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities.4 Further, inmates wait in line and stand shoulder to shoulder while using one of the 38 phones at the Field House. There are no wipes or sanitizers there to clean the phones after each use. Some inmates have resorted to getting diluted bleach water from inmate-porters who clean the facility.
With little control over his situation and word spreading about sick inmates in nearby blocks, Mr. Wheeler is fearful for himself and other medically vulnerable inmates. Last week, an inmate died at the facility; one corrections officer told Mr. Wheeler the cause was COVID-19, while another said it was not. There has been no official word from prison officials.
Infectious diseases specialists warn that no conditions of confinement in prison settings can adequately manage the serious risk of COVID-19 infection for medically
3 Available at https://doccs.ny.gov/doccs-covid-19-report (visited Apr. 16, 2020).
4 Available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional- detention.pdf (visited Apr. 7, 2020).
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vulnerable. Thus, correctional public health experts have urged the release of older people and those with underlying medical conditions. See, e.g., NYC Officials Call for Release of ‘Most at Risk’ on Rikers Island as More Test Positive for Virus, NBC New York (March 18, 2020).5 By reducing density and freeing up medical resources, the release of Mr. Wheeler and other high-risk individuals would also allow for greater risk mitigation for all people who remain in custody or working in New York State prisons. See Why Jails Are So Important in the Fight Against Coronavirus, N.Y. Times (March 31, 2020) (featuring interactive map showing flow of people in and out of jails, illustrating risks posed to not only inmates but also workers and surrounding communities).6
Time is of the essence. The deadly disease has already made its way inside the DOCCS system. Five inmates and one staff have died from COVID-19; 165 inmates and 693 staff are infected. DOCCS COVID-19 Report: Daily Update.7 As of 14:41 p.m. on the date of this writing, there were 222,284 confirmed cases in New York State, and 12,192 deaths. Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times.8 It is worth noting that just four weeks ago, on March 18, the city jail on Rikers Island had only one confirmed case of a detainee with COVID-19. See Chelsia Rose Marcius, Rikers Island Inmate Has Contracted Coronavirus: Officials, N.Y. Daily News, (Mar. 18, 2020).9 Now, there are at least 334 currently incarcerated inmates diagnosed with the virus (and an additional several hundred staff members).10
5 Available at https://www.nbcnewyork.com/news/local/nyc-officials-call-for-release-of-most-at- risk-on-rikers-prison-as-more-test-positive-for-virus/2333348/ (visited Apr. 7, 2020).
6 Available at https://www.nytimes.com/2020/03/31/upshot/coronavirus-jails-prisons.html (last visited Apr. 7, 2020).
7 Available at https://doccs.ny.gov/doccs-covid-19-report (visited Apr. 16, 2020).
8 Available at https: //www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (visited Apr. 16, 2020).
9 Available at https://www.nydailynews.com/coronavirus/ny-coronavirus-rikers-island-in mate- tests-positive-20200318-gf3r7q4cefaxzlqmwrmuevzz3y-story.html (visited Apr. 7, 2020).
10 The Legal Aid Society is collecting data from the New York City Department of Corrections about the rate of COVID-19 infections and making them publicly available at https://www.legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/ (last updated Apr. 15, 2020).
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Mr. Wheeler’s Conviction, Achievements and Release Plans
Mr. Wheeler has already served nearly six years in prison on his convictions for second-degree burglary (a class C felony) and second-degree assault (a class D felony). Although this was his first felony conviction, he was sentenced to an aggregate term of 20 years in prison by Justice Vincent del Giudice of the Supreme Court of New York, Kings County. His conditional release date is February 3, 2032.11
It bears noting that Mr. Wheeler (DOB: 8/1/91) was only in his early 20s at the time of the 2014 offending conduct. He has matured in prison. Last month, he was scheduled to take a pre-GED examination, but the pandemic forced its cancellation, as well as his classes. Still, he continues to work on his own, focusing on essay writing, a subject he knows he needs to improve.
Mr. Wheeler has strong family ties, and access to stable housing upon his release. Specifically, he can live with his partner, Tanaya Gallimore, 26, with whom he has a five-year-old daughter. Ms. Gallimore lives in a two-bedroom apartment in Brooklyn with her daughter, and is a student at LaGuardia Community College.
Given Mr. Wheeler’s maturity, family support, as well as his medical condition and current prison conditions, further incarceration is unduly harsh and punitive. In light of the risks posed to him by COVID-19, we urge the Executive Clemency Bureau to approve his clemency application and order his immediate release from prison. Thank you for your urgent consideration of Mr. Wheeler’s application. I am available on my cell phone, at (646) 584-7046 to answer any questions.
Sincerely,
Tomoeh Murakami Tse
Tomoeh Murakami Tse
11 Mr. The burglary involved no weapons and the assault, which took place at the precinct upon Mr. Wheeler’s arrest, resulted in minor injury-a lip laceration-to a police officer. Records available upon request.
April 17, 2020 VIA EMAIL
New York State Department of Corrections and Community Supervision Executive Clemency Bureau The Harriman State Campus – Building 2 1220 Washington Ave. Albany, NY 12226-2050
Re: Executive Clemency Application for Darr Williams (DIN # 92-A-7390)
Dear Executive Clemency Bureau:
In 2019, Mr. Darr Williams submitted a full application for clemency, which is pending. Mr. Williams is currently at Shawangunk Correctional Facility, which is experiencing an outbreak of COVID-19. Given the unprecedented health risk that COVID-19 represents, and Mr. Williams’ vulnerability to the virus due to his age and underlying health conditions, we respectfully and urgently request commutation of Mr. Williams’ sentence and his immediate release on parole.
Below please find the details pertinent to our current emergency request. For more information, we respectfully refer you to Mr. Williams’ application for executive clemency, submitted April 22, 2019.
Applicant:
• Name: Darr Williams
• DIN: 92-A-7390
• Date of birth: 2/20/1970
• County of conviction: Queens
• Indictment number: 2326-91
Executive Clemency Bureau, p. 2 April 17, 2020 Age and Health Status
Mr. Williams is 50 years old. He has at least two underlying health conditions, pericarditis and high blood pressure, that put him at increased risk for a severe illness and death due to COVID-19.
Pericarditis is the swelling and irritation of the thin saclike membrane surrounding the heart. This is often brought upon by a viral infection. In Mr. Williams’ case, his pericarditis is triggered upon being infected with a virus or influenza. He has been hospitalized twice for pericarditis, both times after a viral infection. He takes ibuprofen in order to limit the swelling. Existing research shows that people with heart conditions have a higher chance of developing serious illness due to COVID-19, and are at greater risk for death.
In addition to pericarditis, Mr. Williams also has high blood pressure, which is another risk factor. He takes prescription medication for his high blood pressure. High blood pressure is an underlying health condition commonly found in those who become seriously ill or die from COVID-19. Because Mr. Williams’ age and health condition places him at risk, we urgently request that the remainder of his sentence be commuted and he be immediately released on parole.
Crime of conviction: Mr. Williams was convicted of depraved indifference murder in 1992. The conviction stemmed from a January 17, 1991 altercation in which Mr. Williams was ordered to shoot the two victims. Mr. Williams has maintained then and now that he fired shots into the ground, and the victims were killed by others in the group. Mr. Williams has taken responsibility for his actions that led him to that situation, has apologized for his role in the murders and has expressed sincere remorse for the harm he caused the victims and their families.
Sentence and scheduled release date: On August 12, 1992, a judge sentenced Mr. Williams to two sentences of 20 years-to-life, to be served consecutively, for an aggregate sentence of 40 years-to-life. He has now served 28 years of his sentence, and will not be eligible for parole until 2032, when he will be 62 years old.
Behavior during incarceration: Mr. Williams’ disciplinary, educational, employment and volunteering record over the course of his confinement demonstrate that he poses no threat to society. He has incurred only limited disciplinary infractions while in prison. He has been regularly employed throughout his incarceration, has earned a GED certificate, and is currently earning his Associate’s degree, which he is due to receive this summer. In addition, he has an exemplary record of volunteer service as a Resident Coordinator for the PACE program and a volunteer with the Youth Assistance Program, and has received numerous awards, commendations and certificates regarding his work on HIV awareness.
Post-release housing plans: Following release, Mr. Williams plans to live with his sister Shamika Burden, who wrote a letter on his behalf that is included in his clemency application. She has recently relocated to North Carolina. If an in-state host is needed, Mr. Williams’ other sister, Tanya Wilkinson, has offered to host him at her home in Rockaway Park, New York.
* * * Executive Clemency Bureau, p. 3 April 17, 2020
Based on press reports and conversations with Mr. Williams, we understand that many corrections officers at Shawangunk Correctional Facility, where Mr. Williams is currently housed, have tested positive for COVID-19. Additionally, many inmates have become sick, and at least one has died. Although testing is not widely available for them, they are presumed to have COVID-19. At least two entire blocks have been quarantined because of the virus.
Given the danger of transmission in confined spaces, and Mr. Williams’ potential vulnerability to the virus, we respectfully request that Mr. Williams’ application be reviewed, his sentence be commuted and that he be immediately released on parole. Thank you for your attention to this matter. Please do not hesitate to contact me with any questions.
Sincerely,
Scott Reed Attorney for cc: David Crow (via email) The Legal Aid Society Criminal Appeals Bureau 199 Water Street New York, NY 10038