"I will resentence you to the maximum amount of jail, without any problem," District Court Judge Francis Ricigliano warned Diane McCloud in court. He had released her in January from a 15-month petty larceny sentence.
"If you pass away there [in jail], it's a terrible tragedy but it's up to you," Ricigliano said. "I'm going to give you one more chance because I want you to live."
McCloud, 47, who has lived at home since Ricigliano freed her, wore a blue bag containing an intravenous drip with a solution that helps keep her heart pumping. She has end-stage heart failure.
Doctors predicted in December that McCloud had six months to live without a new heart. Ricigliano learned of McCloud's smoking problem after Dr. Sanjay Doddamani, Nassau University Medical Center's chief of cardiology, wrote to the district attorney to say she refused to stop.
Doddamani said he could not comment on the case but in general, "You must demonstrate abstinence from smoking for six months [before a transplant].
McCloud, who started smoking at 13, said she smokes "about four cigarettes a day."
McCloud also did not submit to court-ordered random drug tests and did not show up as scheduled at Montefiore Medical Center in the Bronx for an appointment with the transplant program. She was not accepted into that program, said her attorney, Leonard Isaacs of Valley Stream.
McCloud said she went to Montefiore but didn't wait for her appointment. A hospital spokeswoman had no comment.
McCloud's sister, Joanne McCloud, criticized Isaacs and the judge and said, "She's had difficulty kicking" the habit.
Isaacs said the judge and Assistant District Attorney Dana Boylan "were very kind to the defendant."
Ricigliano originally planned to resentence McCloud after her heart problems were resolved. Monday, he adjourned her case to June 10 and ordered her into a drug-monitoring program.
Isaacs said McCloud is now seeking admission to a transplant program at Mount Sinai Medical Center in Manhattan.
Even patients accepted to a transplant program must wait for a heart. If McCloud does get accepted at Mount Sinai, she would be on a waiting list. Medicaid would pay for her operation, about $800,000.