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Paroled murderer serving 90 days for contraband released from jail

Among the 21 inmates released from Erie County's jails to reduce the spread of the coronavirus is a paroled murderer and rapist who was serving a 90-day sentence for a misdemeanor conviction for possessing prison contraband.

Franklin Rivera was on a list of three inmates who had fewer than 45 days left on their sentences that was presented to a judge last week. He was going to be removed from that list, which would have kept him at the Erie County Correctional Facility in Alden, but a delay in paperwork led to him being released anyway, according to Erie County District Attorney John J. Flynn.

"Everyone is working remotely. We're virtual," Flynn said. "And because of that we did not see the order that was submitted to the judge. If we were in court, the wrong order would have never been signed."

The situation shows how complicated the decisions are about releasing inmates while the justice system contends with the pandemic, he said.

Rivera, of New York City, was 21 when he was convicted in the 1989 murder and rape of a Brooklyn woman during a burglary. He was sentenced the following year to 25 years to life in prison. In 1995, while he was at Wende Correctional Facility in Alden, Rivera pleaded guilty to a misdemeanor charge of possession of prison contraband.

"He got caught with drugs," Flynn said.

Rivera was released on parole after serving 29 years, and then he was sent to the Erie County Correctional Facility in Alden to serve out the 90-day sentence for the contraband conviction. Sentences of less than a year are served at county jails, as opposed to state prisons. He was scheduled to be released from the Erie County Correctional Facility on June 14.

"It's important to note that he only got released 37 days early on the B misdemeanor from 1995," Flynn said.

As jails and prisons across the country have experienced the outbreak of Covid-19, advocates for prisoner rights have called for the release of inmates and prisoners, especially those who are older or have medical conditions that may put them at higher risk of complications from the virus, as well as those who are almost done with their sentences.

As of Wednesday, the DA's office has consented to the release of 21 inmates at Erie County's two jails who had 45 days or fewer left on their sentences "in an effort to reduce inmate populations and reduce the spread of COVID-19," Flynn's office said in a statement. In addition, the DA's Office said it has reviewed 101 bail motions for people being held pretrial as of Tuesday. Twenty-five of those inmates have been released, and 25 more had their bail amount reduced.

No inmates at either facility have tested positive for Covid-19, according to the Erie County Sheriff's Office, but defense attorneys say there's been little to no testing of the inmates so there's no way to know for sure. Other facilities, including the Federal Detention Facility in Batavia and Attica and Wende correctional facilities have reported cases among detainees.

Rivera was originally among three sentenced inmates included in a motion submitted by attorneys with the Legal Aid Bureau filed last week in court for consideration to be re-sentenced.

But Erie County Court Judge Sheila DiTullio wanted more information about the defendants' cases and the hearing was postponed.

Flynn said he had initially consented to Rivera's release, but then changed his mind after reviewing the case again. Last week, the two other defendants' cases were presented and they were released. But, Rivera's name remained on a releasing order, Flynn said, and he ended up being released.

"I changed my mind," he said about releasing Rivera. "But the more I think about it I had no good reason to change my mind."

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