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Conditions of Probation Which Allowed Release of Defendant’s Pre-Sentence Investigation Report Illegal

The Third Department, in a full-fledged opinion by Justice Devine, determined two provisions of defendant’s sentence to probation which purported to allow release of defendant’s Pre-Sentence Investigation report (PSI) were illegal and must be vacated.  The court noted that the illegality of a sentence which is apparent from the record survives a waiver of appeal and the absence of an objection:

CPL 390.50 (1) provides that a PSI “is confidential and may not be made available to any person or public or private agency except where specifically required or permitted by statute or upon specific authorization of the court” (emphasis added). The court that is referenced in CPL 390.50 (1) is the sentencing court … . While the People argue that the challenged conditions constitute specific authorization of disclosure by the sentencing court, condition 17, on its face, is a blanket delegation to the Probation Department to authorize disclosure of the PSI to treatment providers if the department deems the request appropriate. In our view, such a general authorization of disclosure by the Probation Department is contrary to both the statutory mandate of specific authorization and this Court’s direction that only the sentencing court can grant that authorization.

Moreover, the requirement in condition 32 that defendant consent to disclosure of the PSI is similarly contrary to law. Under CPL 390.50, criminal defendants themselves are not entitled to their PSI in collateral proceedings, absent statutory authority, except under limited conditions, i.e., upon a proper factual showing of need … . Even when a defendant has demonstrated a need for disclosure, he or she is never “automatically entitled to an unredacted copy of [the PSI]” … . Rather, in light of the requirement of specific authorization and given the sentencing court’s discretion to except portions of a PSI from disclosure, the court must make a determination whether redaction is appropriate … . That is, under the statute, a defendant cannot demand or “consent” to release of the entire, unredacted PSI — only the sentencing court can permit the release of the PSI after the party requesting it has shown that the information cannot be obtained in any other way, and only after the court has considered whether redaction is necessary. People v Fishel, 2015 NY Slip Op 02808, 3rd Dept 4-2-15

 

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