Opinion
December 17, 1999
Michael M. Murray and Peter Pullano for defendant.
Howard R. Relin, ESQ. District Attorney of Monroe County (Michael Green of Counsel), for plaintiff.
OPINION, DECISION ORDER
This is a potential death penalty case. Defendant John Owens is charged with two counts of Murder in the First Degree, three counts of Murder in the Second Degree, and three counts of Rape in the First Degree. The District Attorney's office has not yet decided whether to file a Notice of Intent to Seek the Death Penalty pursuant to CPL § 250.40.
Defendant has asked this Court to sign a subpoena seeking the records of the Monroe County Department of Probation, including pre-sentence investigation reports prepared in connection with Defendant's prior criminal convictions. The defense intends to use the pre-sentence reports and other records both to dissuade the District Attorney from seeking the death penalty and to prepare for mitigation in the sentencing phase of trial. The People do not oppose Defendant's request, but rather ask this Court for similar access to these reports.
Pursuant to Criminal Procedure Law § 390.50 Crim. Proc. a pre-sentence report is confidential in nature and unavailable to any person, including a criminal defendant, unless specifically authorized by statute or court order. Section 390.50 Crim. Proc. (2)(a) provides for disclosure of a pre-sentence investigation report for the limited purposes of sentencing a defendant in a criminal case for which the report was prepared, and for any appeal arising out of that case. Any other disclosure is soundly within the discretion of the Court, and based upon a requisite showing of need.
This Court is mindful that the Fourth Department has held that CPL § 390.50 "does not authorize disclosure of a pre-sentence report in a collateral proceeding discrete from the proceeding for which the report was originally prepared."Salamone v. Monroe County Department of Probation, 136 A.D.2d 967 (4th Dept. 1988). Nonetheless the Court finds that both the People and the defense have demonstrated a legitimate basis for disclosure of any pre-sentence investigation report, namely, to assist the District Attorney in determining whether to seek the death penalty, and the defense in dissuading the District Attorney from making such a determination. Accordingly, any pre-sentence report shall be disclosed to the defense and the People. Disclosure shall not extend, however, to sealed records arising out of any youthful offender adjudication afforded the Defendant. Id; People v. Whitehurst 167 Misc.2d 383, 386 (Sup.Ct. Queens Cty. 1996).