Opinion
564/2001.
Decided May 22, 2008.
The defendant, pro se, has moved for an order granting him a copy of his pre-sentence investigation report which was prepared prior to his sentencing under the captioned indictment. As a matter of policy and current practice, the New York City Department of Probation has not submitted any papers in response to this application as it takes no position regarding the release of pre-sentence reports to defendants.
The defendant, laboring under the belief that another pre-sentence report was subsequently prepared, requests a copy of that report as well.
The defendant herein was sentenced on May 3, 2002, upon a plea of guilty, to a term of 16 years to life imprisonment.
In deciding this motion, the court has considered the moving papers and the official court file, and further takes notice of a letter issued by the Commissioner of Probation (on December 19, 2006) outlining the Department's general policy to take no position regarding the release of such reports, but, nevertheless providing certain guidelines with respect to their disclosure. As discussed immediately below, the court determines that the instant application should be denied as to the defendant's 2002 report.
Discussion
The court commences its analysis by observing that a defendant has no constitutional right to obtain a copy of the pre-sentence report. However, since 1975, the Criminal Procedure Law has provided for the release of such report to the defendant under certain circumstances. CPL 390.50 (2) contains the provisions which govern the disclosure of the contents of a pre-sentence report.
People v Peace, 18 NY2d 230, 233-234 (1966), cert. denied, 385 U.S. 1032 (1967).
Under CPL 390.50 (2), a pre-sentence report is to be made available to the defense for review or copying one day prior to sentencing, in order to afford a defendant the opportunity at sentencing to contest any information in the probation report. However, challenges to the accuracy of the contents of the pre-sentence report must be raised before sentencing.
People v Rogers, 54 AD2d 616, 616-617 (1976); People v Ferrara, 91 Misc 2d 450, 451-452 (1977).
Matter of Cox v New York State Div. of Parole , 11 AD3d 766 , 768 (2004), lv. denied, 4 NY3d 703; Matter of Antonucci v Nelson, 298 AD2d 388, 389 (2002); Matter of Salerno v Murphy, 292 AD2d 837, 837-838 (2002), lv. denied, 98 NY2d 607; Matter of Hughes v New York City Dept. of Probation, 281 AD2d 229 (2001); Matter of Sciaraffo v New York City Dept. of Probation, 248 AD2d 477, 477 (1998).
A defendant also has a legal right to a copy of the pre-sentence report for purposes of appeal, and, it has been held, for use before the parole board. Nevertheless, a bare assertion that the applicant needs a copy of the pre-sentence investigation report to prepare for his/her appearance before the Board of Parole is insufficient without demonstrating that a parole hearing is scheduled.
CPL 390.50 [2]; Matter of Legal Aid Bur. v Armer, 74 AD2d 737 (1980); Rogers, supra, 54 AD2d at 617-618.
Matter of Legal Aid Bur. v Armer, supra, at 737; see also, Matter of Gutkaiss v People , 49 AD3d 979 (2008); People v Wright, 206 AD2d 337, 338 (1994), lv. denied, 84 NY2d 873.
Matter of Kilgore v People, 274 AD2d 636, 636 (2000) ; see also, Matter of Gutkaiss v People , 11 AD3d 845 (2004).
Where a defendant seeks a copy of the pre-sentence report for use in a collateral proceeding, i.e., a proceeding other than sentence, parole, or appeal, the court has the discretion to release the report but is not mandated to do so. In a collateral proceeding, the movant must set forth a sufficient factual basis to warrant the disclosure of the report to him. Thus, it has been held that an application stating that the petitioner sought the pre-sentence report in order "to apply for certain prison programs and future parole release consideration" was insufficient.
Matter of Blanche v People, 193 AD2d 991, 991-992 (1993).
Id.; Matter of Hoyle v People, 274 AD2d 633, 633 (2000).
Matter of Campney, 279 AD2d 882, 882 (2001).
Here, the defendant indicates that he has no recollection of having been shown his pre-sentence report by his attorney prior to his sentencing on May 3, 2002. Thus, he now requests a copy of same "to ensure that it contains accurate information relevant to all aspects of his case."
The defendant additionally requests a copy of a latter report which was to have been prepared in conjunction with a re-sentencing which was scheduled to take place on December 6, 2005, but which re-sentencing never in fact occurred. The defendant wishes to have a copy of this subsequent pre-sentence report to ensure that it too is accurate, and also, "most importantly to find the reason for the second pre-sentence report, and what was the basis for the petitioner being told . . . that he would be re-sentenced on December 6, 2005." The defendant further desires these reports with respect to "his ability for future transfers, enrollment in prison-related programs, etc." and to ascertain that "accurate information is being presented to all appropriate agencies" and that his "inmate status reports" are based upon correct information.
The defendant states in his moving papers that a Ms. Woodright of the Department of Probation had informed him that he was to be re-sentenced on December 6, 2005. Mr. Johnson further alleges that he was actually interviewed for the new pre-sentence report and re-sentencing via teleconference from Rikers Island in November of 2005; however, the re-sentencing never took place. Upon review of the official court file, this court can confirm both that an updated pre-sentence investigation report was ordered (on November 22, 2005), and that no re-sentencing ever occurred. It is unknown to this court and unclear from the record why a re-sentencing was contemplated, but never took place. Nor does this court possess any information as to whether such report was actually ever prepared and completed.
Regarding the defendant's original pre-sentence report, prepared for his sentencing which took place on May 3, 2002, this court rules that the defendant is not entitled to receive a copy of same for his review, assuming such report is even still in existence.
Based upon a cryptic notation on the court file jacket, this court believes that the original report was perhaps lost, and that this was the reason that a new (updated) report was requested.
The court so holds because the defendant's attempts to review this report for accuracy are untimely. Such should have (and may have) been done on May 3, 2002, but cannot be done now, in any event. Additionally, absent a showing of a scheduled parole board appearance or in the context of a sentence, appeal or other relevant proceeding, this court finds no basis for the disclosure of the original report to the defendant, and the defendant's additional bases for disclosure are insufficient to demonstrate the defendant's need therefor. Accordingly, that branch of the defendant's motion is, respectfully, denied.
Cf., Matter of Shader v People, 233 AD2d 717 (1996).
Turning to the defendant's request to review the latter report, the answer is not as clear. Firstly, this court has no knowledge as to whether such report was ever prepared (although the Department of Probation should know if such exists). Obviously, if none exists, that ends the defendant's quest. However, in the event such report does exist, and was prepared de novo to replace the original report, then this court would be inclined to find that just as the defendant was entitled to review the original for accuracy following its preparation, but prior to sentencing, so too, the defendant should have had a contemporaneous opportunity to review the second report. However, the defendant waited almost two years before asking to review the second report. Thus, this court is constrained to conclude that this latter request is stale as well. Certainly, it is too late to seek correction of possible errors in a report which was to have been prepared prior to December 6, 2005.
Whether the defendant should be allowed to review such second report, in order to be aware of what it contains (even though he has no apparent right to contest the accuracy of its contents), is a different question. In the court's view, given the most unusual circumstances here presented, the defendant should be afforded an opportunity to review the second report, if such exists. The review of such report shall be, however, after confidential matter, which is unnecessary or inappropriate for disclosure to the defendant (such as the addresses and telephone numbers of victims or witnesses, etc.), has been redacted from the report.
See, CPL 390.50(2)(a).
Since this court is not in possession of the defendant's second report and is unaware of whether it contains any sort of information to which the defendant may not be entitled and further finds the Department of Probation equally, if not better, equipped to review the report for necessary redactions, the court respectfully delegates to an appropriate member of the staff of the Department of Probation the task of deleting from the defendant's report whatever matter, if any, he/she finds should not be disclosed to him, prior to releasing same to him.
Accordingly, in the event that a second pre-sentence was ever prepared herein (on or about, or between November 22, 2005 and December 5, 2005) and presently exists, this court rules that the defendant shall be provided a copy of same. However, prior to releasing same to the defendant, an appropriate member of the staff of the Department of Probation shall review the defendant's report to ascertain whether it contains any confidential information or other matter which should not be disclosed to the defendant and shall make the appropriate necessary redactions, if any, on behalf of the court, and shall then forward a copy of such report directly to the defendant.
The foregoing constitutes the decision and order of the court.