New York State Assembly

 
•  Summary 
 
•  Actions 
 
•  Committee Votes 
 
•  Floor Votes 
 
•  Memo 
 
•  Text 

A09519 Summary:

A09519 Actions:

A09519 Committee Votes:

A09519 Floor Votes:

A09519 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
 submitted in accordance with Assembly Rule III, Sec 1(f)



 
BILL NUMBER: A9519
 
SPONSOR: Mosley

 
TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to availability of pre-sentencing reports
 
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Criminal Law and Procedure.
 
This measure would amend CPL 390.50(2) to provide a defendant with
access to his or her pre-sentence investigation report in connection
with a post judgment motion.
 
Pursuant to CPL 390.50(1), a pre-sentence report "is confidential and
may not be made available to any person . . . except where specifically
required or permitted by statute or upon specific authorization of the
court." Under CPL 390.50(2)(a), pre-sentence reports "shall be made
available by the court for examination and copying in connection with
any appeal in the case . ." (emphasis added). Strictly construed, this
does not authorize access to a pre-sentence investigation report for
post-judgment motions, such as CPL Article 440 motions dealing with
sentencing issues (e.g., ineffective assistance of counsel at sentenc-
ing), or coram nobis applications (e.g., ineffective assistance of
appellate counsel).
 
Moreover, CPL 390.50 has been narrowly construed (see e.g., People v
Fishel 128 A.D.3d 15 (3d Dept. 2015); Matter of Thomas v. Scully, 131
A.D.2d 488 (2d Dept. 1987)). Courts that have examined a defendant's
right to a pre-sentence report for use in collateral proceedings have
mostly done so in the context of parole hearings or an appeal from the
denial of parole. These courts have held that disclosure of a presen-
tence report in collateral proceedings may only be done on motion to the
sentencing court and only after a factual showing of need (see e.g.,
Matter of Shader v People, 223 A.D.2d 717 (3d Dept 1996); People v
Wright, 206 A.D.2d 337 (1st Dept 1994); Matter of Thomas v. Scully,
supra, 131 A.D.2d 488 (2d Dept. 1987); Matter of Legal Aid v. Armer, 74
A.D.2d 737 (4th Dept 1980); see also People v Tevault, 2010 WL 5574415
(N.Y. Sup. Ct: 2010); People v Delatorre, 2 Misc.3d 385 (N.Y. Sup. Ct.
2003)). As a result of these rulings, trial courts were inundated with
motions for the release of pre-sentence reports for collateral
proceedings. Relief finally came in a 2010 amendment to CPL 390.50(2)
when the Legislature authorized a defendant to have access to the
probation report "for use before the parole board for release consider-
ation or an appeal of a parole board determination" (L.2010, c. 56, pt.
00, § 5). While this amendment settled the question of whether and under
what circumstances a defendant could access a probation report in
connection with a parole proceeding, by singling out parole hearings and
their appeals, the statute may have undermined a defendant's opportunity
to access the report in all other types of collateral proceedings.
Courts continue to be inundated with motions for release of pre-sentence
reports in cases where fundamental fairness would suggest that the
subject of the report ought to have access to it for purposes of these
collateral proceeding. Requiring a formal motion is needlessly wasteful
of court resources and places an unnecessary barrier for defendants who
need the report to prepare a post judgment application to the trial
court.
 
 
This measure provides a defendant with access to the pre-sentence inves-
tigation report for "post judgment motions," by placing these collateral
proceedings on par with appeals.

This measure, which would have no fiscal impact, would take effect imme-
diately.
 
 
LEGISLATIVE HISTORY:
 
None. New proposal.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

A09519 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          9519
 
                   IN ASSEMBLY
 
                                     March 10, 2016
                                       ___________
 
        Introduced  by  M.  of A. MOSLEY, LENTOL -- (at request of the Office of
          Court Administration) -- read once and referred to  the  Committee  on
          Codes
 
        AN  ACT to amend the criminal procedure law, in relation to availability
          of pre-sentencing reports
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Paragraph  (a)  of subdivision 2 of section 390.50 of the
     2  criminal procedure law, as amended by section 5 of part OO of chapter 56
     3  of the laws of 2010, is amended to read as follows:
     4    (a) Not less than one court day prior to sentencing, unless such  time
     5  requirement  is  waived by the parties, the pre-sentence report or memo-
     6  randum shall be made available by the  court  for  examination  and  for
     7  copying by the defendant's attorney, the defendant himself, if he has no
     8  attorney,  and  the  prosecutor. In its discretion, the court may except
     9  from disclosure a part or parts of the report or memoranda which are not
    10  relevant to a proper sentence, or a diagnostic opinion which might seri-
    11  ously disrupt a program of rehabilitation,  or  sources  of  information
    12  which  have  been obtained on a promise of confidentiality, or any other
    13  portion thereof, disclosure of which would not be  in  the  interest  of
    14  justice.  In  all cases where a part or parts of the report or memoranda
    15  are not disclosed, the court shall state for the record that a  part  or
    16  parts  of the report or memoranda have been excepted and the reasons for
    17  its action. The action of the court excepting information  from  disclo-
    18  sure shall be subject to appellate review. The pre-sentence report shall
    19  be made available by the court for examination and copying in connection
    20  with  any  appeal  or  post-judgement  motion  in the case, including an
    21  appeal under this subdivision. Upon written  request,  the  court  shall
    22  make a copy of the presentence report, other than a part or parts of the
    23  report  redacted  by  the court pursuant to this paragraph, available to
    24  the defendant for use before the parole board for release  consideration
    25  or  an  appeal  of  a  parole board determination. In his or her written
    26  request to the court the defendant shall affirm that he  or  she  antic-
    27  ipates  an  appearance  before  the  parole  board or intends to file an
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13992-01-6
        A. 9519                             2
 
     1  administrative appeal of a parole board determination. The  court  shall
     2  respond  to  the  defendant's  written  request  within twenty days from
     3  receipt of the defendant's written request.
     4    § 2. This act shall take effect immediately.