People v. D.R., CR-007068-20BX

CourtNew York Criminal Court
Writing for the CourtJeffrey M. Zimmerman, J.
Citation155 N.Y.S.3d 719,73 Misc.3d 733
Docket NumberCR-007068-20BX
Decision Date06 October 2021
Parties The PEOPLE of the State of New York v. D.R., Defendant.

73 Misc.3d 733
155 N.Y.S.3d 719

The PEOPLE of the State of New York
v.
D.R., Defendant.

CR-007068-20BX

Criminal Court, City of New York, Bronx County.

Decided on October 6, 2021


Darcel D. Clark, District Attorney (Samantha Miller of counsel), for plaintiff.

The Bronx Defenders (Jill Greco of counsel) for defendant.

Jeffrey M. Zimmerman, J.

73 Misc.3d 734

Can a defendant be required to get vaccinated for Covid as a condition of a conditional discharge? During a court appearance in this case on September 30, 2021, the Court expressed the view that such a condition is permissible and included it as part of the defendant's conditional discharge sentence. The Court writes this opinion to explain its reasoning in more detail.

PROCEDURAL HISTORY

The criminal court complaint alleges that on or about April 22, 2020, while Fire Department emergency medical services professional Laura Karol was treating the defendant, he struck her with a closed fist, causing substantial pain, redness, bruising, soreness and swelling to her left bicep. The defendant was charged with, among other charges, assault on an emergency medical services professional pursuant to PL § 120.08, a Class C felony. He was arraigned in Bronx County Criminal Court

155 N.Y.S.3d 720

on April 23, 2020 and held on $5,000 bail. After a bail review, new bail conditions were set: $2,500 partially secured bond, $1,000 fully secured bond, $500 cash or $500 credit card. The defendant subsequently posted bail on May 8, 2020 and was released.

The case was administratively adjourned several times during the Covid epidemic. During a court appearance on January 12, 2021, the People offered a more lenient plea to the charge of Assault in the Second Degree, PL § 120.05(3), a Class D felony, with a sentence of a conditional discharge. The defendant rejected this offer.

On May 12, 2021, the People sweetened the offer again, giving the defendant the opportunity to plead to the misdemeanor charge of Assault in the Third Degree, PL § 120.00, with a conditional discharge. The defendant was not present in court to consider the offer. After he missed two more court appearances, a bench warrant was issued for his arrest. On August 10, 2021, when the defendant was returned on the warrant, he was again offered the misdemeanor assault plea, which he declined.

73 Misc.3d 735

Three weeks later, on September 30, 2021, the People reduced their offer yet again, this time giving the defendant the opportunity to plead to the non-criminal violation of Disorderly Conduct, PL § 240.20, with a Conditional Discharge.1 The Court asked the People why the offer had changed from a felonious assault to a violation, and why the People believed the violation was an appropriate offer. They responded that "there was [sic] minimal injuries," that "the defendant has a limited criminal history," and that "the complaining witness was ok with this disposition" (tr at 4). The Court pointed out that the minimal injury and the defendant's record were both known to the People when they were insisting on the felony plea (Id. ). The People's only response was that the victim "became OK with this offer" (tr at 5).

The Court asked the defendant whether he had been vaccinated for Covid, and he responded in the affirmative, although he did not have proof of the vaccine with him (tr at 5, 11). The Court expressed the view that the People's offer was extraordinarily generous, given the nature of the conduct in question (assaulting an emergency medical worker trying to do her job), and that it would therefore accept the plea only if the defendant, as a condition of the conditional discharge, provided proof of his Covid vaccine. While acknowledging that the Court has broad discretion to impose rehabilitative conditions as part of a conditional discharge, defense counsel objected to the vaccine condition, arguing that it "should [not] be a condition on any plea in this courthouse or anywhere" because the defendant "should have the right to choose the vaccine or not" (tr at 6-7). The Court made clear that it was not requiring the defendant to be vaccinated, since he was free to decline the Court's offer and proceed with the case (tr at 6). The Court further explained why it believed the vaccine condition to be rehabilitative, and therefore allowable (tr at 7).

After consulting further with counsel, the defendant decided to plead guilty to the disorderly conduct violation, and was

73 Misc.3d 736

sentenced to a conditional discharge, a

155 N.Y.S.3d 721

condition being that he present proof of Covid vaccination within three months (tr at 11-13).

THE COVID-19 PANDEMIC

The United States is in the throes of the worst pandemic in a century. Over 700,000 people have died (Centers for Disease Control and Prevention, COVID Data Tracker, https://covid.cdc.gov/covid-data-tracker /No.cases_casesper100klast7days [last accessed Oct. 6, 2021]). New York State — and New York City in particular — bore the brunt of the pandemic in its earliest days. To date, over 56,000 New Yorkers have died of Covid; over 34,000 of them lived in New York City, and 6,723 of them were from the Bronx (Worldometer, New York, https://www.worldometers.info/coronavirus/usa/new-york/ [last accessed Oct. 6. 2021]).

The Food and Drug Administration gave emergency approval to three vaccines it found to be both safe and highly effective in preventing serious injury and death from Covid, and gave final approval to one of those vaccines (Pfizer) on August 23, 2021 (Lisa Maragakis & Gabor Kelen, Johns Hopkins Medicine, Full FDA Approval of a COVID-19 Vaccine: What You Should Know , https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/full-fda-approval-of-a-covid-19-vaccine-what-you-should-know). Nevertheless, large swaths of the population remain unvaccinated, for various reasons that are beyond the scope of this opinion. Here in the Bronx, 30% of adults over 18 are not fully vaccinated (Centers for Disease Control and Prevention, COVID-19 Integrated County View, Bronx County, New York, https://covid.cdc.gov/covid-data-tracker/#county-view|New% 20York|36005|Risk|community_transmission_level [last accessed Oct. 6, 2021]). The result has been what epidemiologists have described as a "pandemic of the unvaccinated," in which the overwhelming number of hospitalized individuals are those who have not taken advantage of the vaccine (Berkeley Lovelace Jr., CDC study shows unvaccinated people are 29 times more likely to be hospitalized with Covid , CNBC, Aug. 24, 2021, also available at https://www.cnbc.com/2021/08/24/ cdc-study-shows-unvaccinated-people-are-29-times-more-likely-to-be-hospitalized-with-covid.html). This creates a situation in which the disease can mutate while it is allowed to run rampant in the unvaccinated community, increasing the risk of

73 Misc.3d 737

new strains that are immune to the currently available vaccines (Nicoletta Lanese, Vaccine-resistant coronavirus ‘mutants’ are more likely when transmission is high, new model finds , Live Science, Aug. 6, 2021, also available at https://www.livescience.com/ coronavirus-vaccine-resistance-mutation-model.html). The bottom line is that whether somebody is vaccinated affects not only that individual, but her friends, family, and fellow citizens. We are all, very much, in this together.

The federal, New York State and New York City governments have responded to the current situation with a raft of vaccine mandates designed to stem the transmission and possible mutation of the virus. The federal government has mandated vaccinations for all federal employees and contractors, and for all healthcare workers at hospitals and nursing homes treating Medicare and Medicaid patients (The White House, Remarks by President Biden on Fighting the COVID-19 Pandemic, Sept. 9, 2021, https:// www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-president-biden-on-fighting-the-covid-19-pandemic-3/ [last accessed Oct. 6, 2021]). Additionally, all businesses employing more than 100 people are required to ensure that their employees either get vaccinated or regularly tested (Id. ). Closer to home, all New York State healthcare workers must be vaccinated (New York State Governor, Department

155 N.Y.S.3d 722

of Health Issues Section 16 Orders to Hospitals and Long-Term Care Facilities Requiring Policy to Ensure All Employees Are Vaccinated, https://www.governor.ny.gov/ news/ governor-cuomo-announces-covid-19-vaccination-mandate-healthcare-workers [last accessed Oct. 6, 2021]). New York City has mandated vaccinations for all public school teachers (Eliza Shapiro, Educators Will By First N.Y.C. Workers to Face Full Vaccine Mandate , NY Times, Aug. 23, 2021, also available at https://www.nytimes.com/2021/08/23/nyregion/nyc-schools-vaccine-mandate.html), and that all New York City employees and contractors either get vaccinated or be subject to regular Covid testing (Karen Matthews & Jennifer Peltz, ...

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