Removes the requirement of a pre-sentence investigation when a negotiated sentence of imprisonment has been agreed upon and there will be no sentence of probation im

Summary of provisions

Section 1 of the bill amends subdivision 1 of Criminal Procedure Law ("CPL") section 390.20 to provide that pre-sentence investigation ("PSI") requirement for persons convicted of a felony shall not apply when a negotiated sentence of imprisonment has been agreed upon by the parties as the result of a conviction or revocation of a sentence of probation, and no sentence of probation will be imposed.

Section 2 amends subdivision 2 of CPL section 390.20 to remove the requirement of a pre-sentence report ("PSR") in the case of a person who has been convicted of a misdemeanor, even in the circumstances listed in CPL 390.20(2)(a)-(c).

Section 3 amends CPL section 390.20(4) to provide that where a PSI or PSR is required by CPL section 390.20(1), it may be waived by mutual consent of the parties and the judge if a sentence of probation has been agreed upon or if such a report has been prepared during the previous twelve- month period. This section further eliminates the prohibition against allowing a waiver of a PSI or PSR where an indeterminate or determinate sentence has been imposed, in effect until September 1, 2013 and found in the closing paragraph of CPL section 390.20(4)(a).

Section 4 repeals the provisions of the closing paragraph of CPL section 390.20(4)(a) that go back into effect on September 1, 2013, with the result that waiver of the PSI is allowed in the event that an indetermi- nate sentence is imposed.

Existing law

Current law under section 390.20(1) of the CPL requires a presiding court to order a pre-sentence investigation of a defendant, and receive a written report thereon, before pronouncing sentence in any case in which such defendant is convicted of a felony. Where the defend- ant has been convicted of a misdemeanor, current law does not require a pre-sentence report, but there are exceptions to this rule that this bill eliminates.

Current law, effective until September 13, 2013, prohibits the waiver of a pre-sentence investigation of the defendant and a written report ther-

eon if a determinate or indeterminate sentence of imprisonment is to be imposed; after September 13, 2013, waiver is not allowed in the case of an indeterminate sentence only.

Justification

The City proposes to eliminate the costly requirement of Pre-Sentence Investigations (PSIs) and related written reports where they would serve no useful purpose. In New York City, there are approxi- mately 110 probation officers and supervisors dedicated to conducting such PSIs, but in nearly two-thirds of these cases, the defendant does not end up under the supervision of the Department of Probation (DoP).

Currently, probation departments are required to conduct PSIS and prepare a written report on all defendants convicted in felony cases. The proposed legislation would amend Criminal Procedure Law (CPL) section 390.20 to provide an exception to this requirement where a nego- tiated sentence of imprisonment has been reached as a result of a felony conviction or revocation of a probation sentence, and where probation will not be imposed under either scenario. Because the purpose of a PSI is to assist the court with sentencing, whenever a sentence of imprison- ment has already been agreed upon by plea, a PSI is unnecessary. In the interest of public safety, probation departments would continue to prepare PSIs in all other felony cases, including those where a plea bargain is reached and the defendant is returning to the community (i.e., probation, fine, conditional discharge). This gives probation departments an opportunity to provide input to the Court as to whether the sentence is appropriate.

The bill would also eliminate the need for PSIs in all misdemeanor cases. (Pursuant to existing CPL section 390.20(2) a PSI is not required in connection with misdemeanor convictions except for probation-bound defendants, jail sentences greater than 180 days and consecutive sentences greater than 90 days.) Instead, when a misdemeanor case results in a probation sentence, DoP will conduct its own investigation while the person is under its supervision.

It is important to realize that the existing CPL section 390.20(3) allows judges to order a PSI in any case where it is appropriate and necessary. This proposal would not affect that discretion to order a PSI even if the statute would no longer automatically require one.

Accordingly, the Mayor urges the earliest possible favorable consider- ation of this proposal by the Legislature.

Legislative history

S.5490 of 2011 - Passed Senate 06/18/12

Fiscal implications

None to the State.

Effective date

This bill shall take effect on the 90th day after becoming law, with provisions.