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Law360 (June 9, 2020, 8:14 PM EDT) -- The Second Circuit on Monday affirmed a lower court's finding that a former aide to New York Gov. Andrew Cuomo improperly sought coronavirus-related release from prison through the courts.
In a Monday order, a three-judge appellate panel denied defendant Joseph Percoco's request that the circuit court take up the question of whether he should be released to home confinement as the nation works to respond to the COVID-19 pandemic.
Percoco, who in March 2019 started serving a six-year prison sentence after a jury found him guilty of accepting $320,000 in bribes for construction projects in his role as an influential government employee, submitted a request in early May for U.S. District Judge Valerie E. Caproni to modify his sentence.
In that initial request, Percoco asked to be sent home to his family in Westchester County, telling Judge Caproni that he was put in isolation on April 11, which prison officials told him was supposed to be a two-week quarantine period after which he would be able to go home for now. But his release hadn't happened, and Percoco argued his Type 2 diabetes, high blood pressure and high cholesterol put him at heightened risk if he came down with the coronavirus.
Judge Caproni denied that request the very same day.
"The confusion at Otisville does not excuse Defendant's failure to file a motion for compassionate release with the BOP," she told Percoco. Court records show the prison also decided that day not to furlough Percoco to home confinement.
Percoco filed a request for release with the prison that same day, and also sent the court a series of documents supporting his claims about his health. Judge Caproni granted reconsideration once she had the supporting documents, but again denied the request.
Federal prosecutors strenuously opposed Percoco's request on May 13, claiming that the court lacked jurisdiction because the defendant has an appeal of his conviction pending, and that he hadn't waited for the Bureau of Prisons to make a decision about his release before seeking help from the courts as the law requires. They also noted that his health is far from critical.
"Percoco is reported to be in good health, including cardiovascular function, his diabetes is under control, and he is regarded by Otisville as having no physical limitations or work restrictions," prosecutors told Judge Caproni.
Government attorneys also emphasized that, procedural matters aside, the defendant "corrupted the highest offices of New York State government with multiple, years-long bribery schemes and ... has served only approximately 14 months of his 72-month sentence."
His release request should accordingly "be denied on both procedural and substantive grounds," the government said.
In a May 26 declaration filed with the Second Circuit, Percoco's attorney Walter Loughlin described Otisville as poorly designed for maintaining appropriate social distancing, telling the appellate court the bunks, communal bathrooms and "spotty" mask wearing made the place a risky one in the pandemic.
U.S. Circuit Judges denied Percoco's request in a single sentence on Monday. Percoco's projected release date is in April 2024, according to the Bureau of Prisons.
"At a time when thousands of inmates in the custody of the Bureau of Prisons have tested positive for COVID-19, and 79 of them so far have died of the virus, it is disappointing that Joseph Percoco, a diabetic whose condition is not adequately managed in prison, must remain at risk of severe medical complications while incarcerated," Loughlin told Law360.
Representatives for the government did not immediately respond to requests for comment on Tuesday.
The government is represented by Janis Echenberg, Robert Boone and Matthew Podolsky of the U.S. Attorney's Office for the Southern District of New York.
Percoco is represented by Walter P. Loughlin.
The case is United States of America v. Percoco, case number 19-1272, in the U.S. Circuit Court for the Second Circuit.
--Editing by Amy Rowe.
For a reprint of this article, please contact reprints@law360.com.
