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

As of November 22, 2020, the outbreak of the novel coronavirus, COVID-19, has sickened over 55 million people worldwide and taken the lives of almost 1.35 million.  These numbers are rising dramatically every day, with a resurgence in many places underway in the United States, including New York, which alone accounts for nearly 600,000 cases and over 33,600 deaths. It has changed the way we live, how we interact with others, and how businesses operate. It also has caused a myriad of changes in both the federal and New York State criminal justice systems for attorneys and defendants. 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.  Unlike most of New York, defendants in New York City are still not being produced to appear physically in court following an arrest because of the virus. Instead, the arraignments occur virtually by video. 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 – which is discretionary under certain circumstances – so that they may be released from the precinct and held for the minimum amount of time. Notably, we are seeing more defendants charged with felonies being granted DATs as a result of our intervention than prior to the beginning of the pandemic.

Federal Arrests in the Southern and Eastern Districts of New York

New arrests, either via criminal complaint or indictment, are 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 – and arraignments are again occurring at both locations.  While defendants are being produced to these courthouses for arraignments and bail arguments on new arrests, all other participants appear virtually and are not in the courtrooms during the proceedings, except for the judge, who has the option of presiding over the matter in person, and court personnel.  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. These procedures have made lengthy confidential communications between defendants and counsel difficult – and as such, it is imperative that one facing a potential arrest retain an attorney at the earliest possible moment to ensure a sufficient opportunity for the preparation of a bail application.

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.  While in-person proceedings had previously been ramping up with the resumption of limited jury trials, those efforts have recently been paused.  Still, certain hearings are occurring in person, such as emergency applications and requests for orders of protection and the review of bail, as well as certain family court matters. Additionally, felony guilty pleas and sentencings are occurring in person in most counties within New York City, as well as some appearances for incarcerated defendants.  The same is true of Nassau and Suffolk counties, whereas in much of upstate New York, appearances in criminal courts are commonly occurring in person.  While you should check with your attorney, most previously scheduled court appearances and all upcoming jury trials are again been adjourned due to the uptick in the virus this fall.  Most courts are instead holding virtual status conferences with attorneys in hopes of resolving cases or keeping those with voluminous discovery or complex issues moving forward.

While previously, the time limits for the commencement of nearly all actions and filings were extended, this is no longer the case as it applies to most criminal actions.  This means that if prosecutors cannot indict a non-bailed felony defendant within 120 hours of arrest (or 144 hours in the case of an intervening weekend or holiday) a preliminary hearing will be ordered by the court or the defendant must be released.  At this preliminary hearing, the People will have the burden of establishing reasonable cause to believe that the defendant committed a felony. This exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment, and experience that it is reasonably likely that the offense was committed and that the defendant committed it. New York CPL § 70.10(2). While this places a low burden on prosecutors, they are required to establish reasonable cause through non-hearsay evidence.  This means it is likely that the complainant or other witnesses will testify – and as such, will be subject to cross-examination by defense counsel long before trial. Notably, in New York City, these preliminary hearings are conduct virtually, whereas elsewhere they may be conducted in person.  Additionally, the previous suspension permitting prosecutors to hold off on indicting an individual charged in a felony complaint has now ended

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 with a few “test case” jury trials ongoing at each, although 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, except for guilty pleas and sentencings, which may occur in person at the discretion of the judge. 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, indeed, lawyers at the Law Offices of Jeffrey Lichtman have already won the early release of multiple individuals serving federal sentences.  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

During this past summer, hundreds of inmates at the Rikers Island jail complex tested positive for the virus – it was an extraordinarily dangerous place to be housed, with over four times the rate of infection of New York City’s population and sixteen times the rate of infection for the United States.  While present figures are not currently available from Rikers, conditions are worsening as jails begin again to swell against capacity following the releases processed earlier this year.  In state facilities, 1,711 inmates have tested positive for the virus, 16 have died, and hundreds of inmates have already been released.  1,655 staff members have also tested positive for the virus. Gov. Cuomo has committed to releasing more inmates 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 significantly curtailed since March, and lawmakers and BOP officials are slowly taking action to release the most vulnerable inmates. A report by the former chief medical examiner of New York City’s jails found conditions at both the MDC and MCC 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.  Presently, three inmates and seven staff members are listed as infected with the virus at the MCC, and six staff members are listed as infected at the MDC, however, the numbers are likely much higher as officials have been unable to sufficiently test inmates.

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. While some federal judges have excused this requirement, others have strictly required its compliance before moving to the next step.

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.