People v. White, 08614-00

• Decision Date: 07 August 2020
• Docket Number: 08614-00
• Citation: 131 N.Y.S.3d 488,69 Misc.3d 425
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Glenn WHITE, Defendant.
• Court: New York Supreme Court

69 Misc.3d 425

131 N.Y.S.3d 488

The PEOPLE of the State of New York, Plaintiff,

v.Glenn WHITE, Defendant.¹

08614-00

Supreme Court, New York County, New York.

Decided on August 7, 2020

David Gray for defendant.

Cyrus R. Vance, Jr., District Attorney (Brian D. Foley of counsel), for plaintiff.

Miriam R. Best, J. Defendant moves to vacate his sentence pursuant to CPL § 440.20(1) on the grounds that it now constitutes cruel and unusual punishment. He seeks to be re-sentenced under CPL § 440.20(4) to time served plus five years' post-release supervision. The People oppose the motion. For the reasons that follow, the motion is denied.

Background

The court has had access to its computerized files, although not to its physical records and files, of these two indictments. The court has also reviewed the published decisions of the Appellate Division, First Department, affirming defendant's conviction on Indictment No. 8614-00,² and of the United States District Court for the Southern District of New York denying his petition for a writ of habeas corpus,³ both of which supply facts relevant to this motion.

The charges in these two indictments arose out of a vicious attack on Timothy Moses in the early hours of November 14, 1999, inside and outside Club Monaco in New York County ( 2009 WL 3241292 ** 2-3 ). Moses, a welder and budding rap artist, was there to attend one birthday party, while defendant was there with Ralph Alicea and other members of Alicea's drug trafficking organization to attend a different party ( id. * 2 ). At some point Moses got angry that Alicea was staring at him. Moses confronted him, which led to " ‘aggressive’ words and gestures" between them; then "Alicea smashed Moses in the mouth with a champagne bottle, shattering his teeth" ( id. ). After Moses and Alicea's group were all expelled from the club, Alicea and several others, including defendant, approached Moses in the street. Defendant was carrying a knife ( id. ).

Moses thought defendant was holding a boxcutter or razor and was afraid he was going to cut him, so Moses punched defendant in the face ( id. * 3 ). "Alicea gave the group orders to attack and the group kicked, punched, and stabbed Moses" ( id. ). Alicea also "yelled, ‘Kill the motherfucker,’ and [defendant], who was standing right next to Alicea, made a ‘jabbing’ or ‘socking’ motion towards Moses's body" ( id. ). A member of Alicea's organization who subsequently cooperated with the prosecution "saw Alicea hold Moses in a headlock and watched [defendant] drop the casing on his knife and stab Moses ... ‘ripp[ing him] from his chest going down’ " ( id. ). As Moses tried to run away, another person smacked him over the head with an aluminum bat, splitting open his forehead. Alicea's group fled ( id. ).⁴

Moses was left on the street, where a police officer found him "unresponsive, unconscious, and covered in blood" ( id. ). A paramedic who arrived at the scene testified that, in addition to having an injury to his forehead

,

Moses was ... bleeding profusely from ‘a gaping wound

that looked like an incision that would have been done with like a razor ... from the right shoulder over

to the midline’ and a ‘stab wound

to his lower right side ... below the rib cage.’

( Id. ) The treating emergency room doctor testified that, in addition to blunt head trauma

and a laceration on the middle of his forehead, Moses had a laceration across his chest and a puncture wound "at the base of his rib cage" ( id. ).

His bowel was punctured, which required doctors to check for air in his abdominal cavity. He received 30 stitches to close the wound

on his forehead and 69 staples "to close the laceration that ran across his chest and over his shoulder" ( id. ).

Moses's recovery required three days in the hospital and several months of extensive outpatient treatment. (Citation omitted.) He had no vision in his right eye for two months, and needed physical therapy to regain motion in his arm, where his muscles were cut. (Citation omitted.) Additionally, he could not eat and talk normally for several months because his teeth were shattered and required a brace to keep them in place. (Citation omitted.)

( Id. * 4.)

Several members of Alicea's drug organization were indicted for drug conspiracy in January 2000 and cooperated with the police ( id. ). Defendant was also indicted for drug conspiracy (see Exh 2, attached).⁵ Based on information provided by the cooperators, defendant and Alicea were subsequently arrested and charged with Attempted Murder in the Second Degree, two counts of Assault in the First Degree and two counts of Assault in the Second Degree for the attack on Moses ( 2009 WL 3241292 *4 ; see also Exh 2). They were tried together on the Attempted Murder indictment before the Honorable Leslie Crocker Snyder in October 2001. On October 30, 2001, the jury found defendant guilty of Attempted Murder and two counts of Assault in the First Degree. On July 25, 2003, Justice Snyder sentenced him to concurrent prison terms of 25 years on each count.

Both the Appellate Division and the federal court found the evidence of defendant's guilt overwhelming ( 33 A.D.3d at 327, 821 N.Y.S.2d 584 ; 2009 WL 3241292 *14 ).

Defendant's Claims

Defendant does not claim that his sentence was illegal when it was imposed (Gray Affirm ¶ 74; White Affid ¶ 64). Rather, he claims that conditions that now exist in Fishkill Correctional Facility ("FCF"), where he is incarcerated, show that the Department of Corrections and Community Supervision ("DOCCS") is demonstrating deliberate indifference to his health needs during the COVID-19 pandemic. As a result, "he is suffering the ‘de facto punishment’ of exposure to [the potentially fatal] COVID-19, which was ‘unforeseeable’ when he was sentenced" (Gray Affirm, id. ). Accordingly, his sentence now violates the Federal and State Constitutions ( U.S. Const., Amend. 8 ; NY Const., Art. I, § 5 ) because it is grossly disproportionate to the crime of conviction and constitutes cruel and unusual punishment (Gray Affirm ¶¶ 75, 81).

Defendant argues that "[a] sentence of confinement to a state penitentiary that is incapable of handling the medical needs of inmates brought by the novel coronavirus panedemic violates the 8th Amendment of the United States Constitution, and Article 1, § 5 of the New York State Constitution" (id. ¶ 17) for two reasons.

First, the volume and gravity of the outbreak within the prison walls reflect that the government, prison officials, and/or prison staff have demonstrated deliberate indifference to the health of prison inmates.

Second, the risk of death to exposure to COVID-19 is a de facto changed circumstance that has made White's sentence grossly disproportionate to his crime of conviction.

(Id. ¶¶ 18-19.) Regarding his claim of deliberate indifference, defendant asserts that New York "has been aptly described" as the global epicenter of the pandemic, that FCF has been "an epicenter within the New York state prison system," and that "his housing unit was the epicenter of the outbreak at FCF" (id. ¶¶ 8, 65; White Affid ¶ 48). Counsel provides information about the "[s]pecific conditions at the Fishkill Correctional Facility" (id. ¶¶ 29-54, 59, 62-63; White Affid ¶¶ 4-52) and provides statistics about the number of FCF inmates who have been tested and the number of FCF inmates who have died (Gray Affirm ¶¶ 29, 30). He also includes the affidavit of Dr. Brie Williams, a professor of medicine at the University of California, San Francisco, who explains why prisons "create the ideal environment for the transmission of contagious disease" (id. ¶ 39 and Def Exh A).⁶ He also describes New York State's actions in response to the pandemic from March until the beginning of July 2020 (id. ¶¶ 25-33) and provides statistics about the numbers of New Yorkers who have been tested for the disease and those who have died from it (id. ¶ 37).

Defendant also provides specific information about his housing unit and his medical conditions and treatment.⁷ He lives in a 55-member unit in a cell with three roommates; all of the people in the unit use the same shared bathroom, which has five toilets and five showers. There is not enough room for social distancing in the bathroom or in the cell, in which the beds are approximately three feet apart (White Affid ¶¶ 4-6). In mid-April, "[s]igns warning inmates of the dangers of the coronavirus and the importance of hygiene and social distancing were placed throughout Fishkill in common areas" (id. ¶ 28), although "inmates are not complying with social distancing rules" (id. ¶ 42) and "social distancing rules are not being observed or enforced while prisoners are in transit, congregating in the recreation yard, or dining in the mess hall" (id. ¶ 43). In late April, two inmates from defendant's housing unit, who had shown signs of COVID-19, died (id. ¶¶ 16, 27, 36). Defendant has been issued hand sanitizer and masks, and is able to buy soap when his hand sanitizer supply is exhausted (id. ¶¶ ¶ 8, 14, 28, 37). But only one-quarter to one-third of the inmates and one-half of the staff in his housing unit are wearing masks (id. ¶¶ 40-41). Defendant states that neither antibody tests nor "[b]road testing of inmates" has occurred, and he has not been tested (id. ¶¶ 49-51). He believes that some inmates who have symptoms of the disease will not report their symptoms or ask to be tested, "and will cause others to fall ill" (id. ¶¶ 52-54).⁸

As for his specific medical conditions, defendant is a 56-year-old African American and Latino man who suffers from hyper- or hypothyroidism

, Type 2 diabetes, arthritis and hypertension (Gray Affirm ¶ 76; White Affid ¶¶ 55, 58-59; Peo's Mem p. 12, fn 7). He is prescribed medication for his conditions (Gray Affirm ¶ 77; Deft's Exh D). He claims that his high blood pressure in particular, as well as his status as an incarcerated African-American man, put him at heightened risk for more severe complications if he contracts C...