Provides inmates and parolees with access to pre-sentence reports

1 Co-sponsor

• Felix Ortiz

2 Multi-sponsors

• Vivian Cook
• Richard Gottfried

BILL NUMBER:A3492A REPLACEMENT 3/4/10

Title of bill

An act to amend the criminal procedure law, in relation to providing inmates and parolees access to pre-sentence reports that had been prepared for sentencing

Purpose of the bill

There has been much litigation concerning the right of an inmate to have access to a copy of his or her presentence report. This instant bill seeks to conform the law with a line of court deci- sions which have interpreted the section of the criminal procedure law governing the redaction and release of these reports.

Summary of provisions

The Appellate Division recognizes two rights an individual possesses with respect to obtaining a copy of a presentence report. First, as a defendant under CPL 390.50(2) (a), the individual may request a copy of the report not less than one day before sentencing or in connection with an appeal of the criminal case. People v. Blanche, 193 A.D.2d 991, 598 N.Y.S.2d 102 (3rd Dept. 1993). Secondly, as an inmate or parolee and with respect to collateral proceedings, the inmate may obtain a copy of the report when he or she makes a sufficient factu- al showing that justifies the need for disclosure. CPL 390.50(1); Matter of Glitkaiss, 49 A.D.2d 979, 853 N.Y.S.2d 677 (3rd Dept. 2008).

Under the Executive Law 259-i (1)(a);(2)(c), the Parole Board must consider the presentence report as one of the factors to be considered by the Board in determining the inmate's application for release. Often, the time period between sentencing and parole board is a long time peri- od and due process requires that the inmate have a copy of his or her presentence report to properly and effectively prepare for.an applica- tion for release.

The amendment requires the inmate to file a written request with the sentencing court. In the request to the court the defendant shall affirm that he or she anticipates an appearance before the parole board for release or intends to appeal a determination of the parole board. After making the factual showing that he or she needs the presentence report for a release hearing or appeal, the court may conduct all in camera inspection of the presentence report, make redactions wherever the court deems it appropriate and provide an inmate a copy of the report.

The court is required to respond to the inmate's request within 20 days from receipt of the inmate's written request.

Justification

This legislation would resolve any questions about the right of certain inmates to have access to their presentence reports. Cf. Matter of Gutkaiss, 49 A.D.2d 979, 853 N.Y.S.2d 677 (3rd Dept. 2008); Matter of Kilgore v. People, 274 A.D.2d 636, 710 N.Y.S.2d 690 (3rd Dept. 2000); Matter of Shader v. People, 233 A.D.2d 717; 650 N.Y.S.2d 350 (3rd Dept. 1996); Matter of Blanche v. People, 193 A.D.2d 991, 598 NYS.2d 102 (3 Dept. 1993).

The law requires the parole board to weigh the impact of the presentence report. Sometimes there is inaccurate information in the report or alle- gations not supported by fact. The inmate should be placed in a position where he or she has notice of the contents of the report and also has an opportunity to correct mistakes and make factual clarifications where the inmate deems it appropriate. Finally, confidentiality of the report is protected by the court. The court has the authority to review the report in camera and to disclose whatever portion of the presentence report it deems appropriate.

Prior legislative history

None.

Fiscal implications

None.

EFFECTIVE DATE:,This act shall take effect on the thirtieth day after it shall have become a law.