The Impact of the Coronavirus on New York Federal and State Cases and Inmates

As of May 10, 2020, the outbreak of the novel coronavirus, COVID-19, has sickened over 4 million people and taken the lives of over 279,000 – with these numbers rising dramatically every day. New York alone accounts for over 335,000 cases.  It has changed the way we live, how we interact with others, and how businesses operate. It also has caused a myriad of temporary changes in both the federal and New York State criminal justice systems. We have continued to monitor these developments of the pandemic as they affect new arrests, pending cases, and inmates who may be eligible for early release. If you have any questions concerning how the coronavirus has affected a loved one’s arrest or term of incarceration, do not hesitate to contact us for a free consultation.

How has COVID-19 Impacted New Arrests?

Arrests by New York State and City Law Enforcement Agencies

Unless an individual is issued a Desk Appearance Ticket (DAT), anyone who is the subject of a new arrest must be arraigned by a judge before he or she may be released. While bail is not required for most non-violent criminal offenses pursuant to the new bail reform laws, a court appearance is still required and the defendant will be held in a detention center or booking facility for a lengthy period of time before that may occur. In New York City, defendants are not being produced by the Department of Corrections to appear physically in court because of the virus. Instead, the arraignments occur virtually by video. All other New York State judicial districts have now followed suit, with new arrests being processed virtually. As it takes longer to coordinate virtual arraignments, inmates are waiting longer in detention facilities before seeing a judge – routinely up to 36 hours. Because of the risks inherent in being held in a detention center or booking facility while bail is determined, we urge anyone who has been arrested or is the target of an investigation to immediately secure an attorney to negotiate a DAT so that they may be released from the precinct and held for the minimum amount of time.

Federal Arrests in the Southern and Eastern Districts of New York

New arrests, either via criminal complaint or indictment, are still being processed by federal magistrate judges. In the Southern District of New York, the court houses located at 500 Pearl Street in Manhattan and 300 Quarropas Street in White Plains remain open, but arraignments are only occurring at 500 Pearl Street. The courthouse located at 40 Foley Square in Manhattan is closed. While defendants are being produced to 500 Pearl Street for arraignments and bail arguments on new arrests, all other participants, including judges and lawyers, appear virtually. The same is true for the Eastern District of New York – new arrests are still being processed, however, arraignments and detention hearings are occurring virtually.

Pending Cases in New York and Coronavirus’ Impact

Most New York City courthouses (New York, Kings, Queens, Bronx and Richmond Counties) remain open at this time, however, their operations are limited. For criminal cases, this includes emergency applications and requests for orders of protection and the review of bail. While you should check with your attorney, most court appearances and all upcoming jury trials are being adjourned. Some judges are holding virtual status conferences with attorneys in hopes of resolving cases or keeping those with voluminous discovery or complex issues moving forward.

Time limits for the commencement of actions and the filing of motions have been extended in most cases to June 7, 2020 by Gov. Cuomo. Notably, this means that prosecutors are not required to indict a non-bailed felony defendant within 120 hours of arrest (or 144 hours in the case of an intervening weekend or holiday) as they normally would need to pursuant to CPL § 180.80 if they inform the court that they are unable to empanel a grand jury due to COVID-19. This permits prosecutors to leave defendants in prison while they determine how and when to present their cases to the grand jury. Given the deplorable conditions at Rikers Island and other local detention facilities during this pandemic, a skilled lawyer should be retained to negotiate or argue bail for an individual who is presently incarcerated in New York City and is being denied his or her speedy trial rights.

Federal Cases in the Southern and Eastern Districts of New York

Officially, both the Southern and Eastern Districts of New York remain open for business, however, new jury trials have been curtailed and most other appearances are occurring by telephone or video conference. In the Eastern District of New York, the chief judge has specifically authorized the use of video conferencing for detention hearings, initial appearances, preliminary hearings, waivers of indictment, arraignments, revocations of supervised release, and misdemeanor guilty pleas. Additionally, judges in the Eastern District of New York are permitted to conduct felony guilty pleas and sentencings virtually if they cannot be put off without serious harm to the interests of justice. In the Southern District of New York, 500 Pearl Street has remained open only to hear urgent criminal matters (arraignments / bail applications and reviews) and judges may conduct guilty pleas and sentencings in person by special arrangement. All other operations are either conducted virtually or put off. Despite court appearances being put off, discovery is still being reviewed by lawyers, motions are being filed, and dispositions are being negotiated as they would normally.

Early Release from Incarceration

There are presently applications pending throughout the criminal justice system for the release of inmates who may be especially at risk of death or serious complication due to the spread of COVID-19. How these applications are handled depends on the type of facility housing the inmate and whether an attorney is involved.

Inmates at New York City and State Facilities

As of May 10, 2020, 370 inmates presently housed at the Rikers Island jail complex have tested positive for the virus, nearly five times the rate of infection for New York City’s population. Three inmates and nine staff have died from it. In city facilities, hundreds of inmates have already been released, and Gov. Cuomo has committed to releasing more in state custody, but the Department of Corrections is acting slowly. Unless a defense attorney is involved in the process and lobbying for the release of an inmate, the decisions as to whom should be released are being made by corrections officers and politicians.

If you have a loved one who is housed at a New York State or City facility and you are concerned that they might be at high risk of death or complication due to age or an underlying health complication, contact the Law Offices of Jeffrey Lichtman immediately. There are multiple avenues that may be pursued for release from a state or local detention facility when attorneys are involved – including petitioning prison officials for compassionate release and motions to judges for the modification of a sentence – and each should be explored immediately. Indeed, these applications are already being granted.

Federally Housed Inmates

COVID-19 has been found at both the Metropolitan Detention Center (MDC) and Metropolitan Correctional Center (MCC), as well as many other federal detention centers, where visitation for both family members and lawyers has been curtailed, and lawmakers and BOP officials are slowly taking action to release the most vulnerable inmates. A recent report by the former chief medical examiner of New York City’s jails found conditions at the MDC to be shockingly bad, with staff failing to take even basic precautions to keep inmates safe. Instead of waiting for these officials to take action on behalf of a family member or loved one, an attorney should be retained to start taking proactive steps on his or her behalf immediately. Even after a court issues an inmate’s compassionate release from incarceration, there are several administrative actions that must occur – and it can take days to facilitate even with an attorney involved.

First, an application with the prison should be filed seeking release of the inmate and establishing why he or she is at risk. To ensure that this application has the best chance of succeeding, an attorney should draft the papers. It may be that medical or other records must be sourced in order to file the application – and they may take some time to retrieve. An attorney is also needed to ensure that this application is ruled on by the warden on a timely basis. If the warden fails to take any action on the application, 30 days must pass from its filing before a motion to the court for relief may be made.

Second, if the warden has denied the inmate’s application for compassionate release or the 30- day period for his response has expired, an attorney may file with the sentencing judge a motion to modify an inmate’s previously imposed term of imprisonment pursuant to 18 U.S.C. § 3582(c)(1)(A). This should be written in advance of the warden’s ruling so that it may be filed with the court without any additional delay. Successful applications have already been filed with courts, and judges in certain instances have converted the remaining portions of inmates’ sentences to home confinement.

Third, for inmates who have not yet been sentenced, an attorney should be retained to file a renewed bail application in light of the pandemic. This may be possible even if the defendant was previously denied bail, has already pleaded guilty, and is awaiting sentencing. To be sure, these applications are already being made and defendants thought previously to be unbailable are being released.

To determine if your family member or loved one qualifies for compassionate release or a renewed application for bail, please contact the Law Offices of Jeffrey Lichtman immediately for a free consultation.