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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

 

Court Should Not Have Imposed a Greater Sentence Based Solely on Bare Fact Defendant Had Been Arrested Since His Guilty Plea

The Fourth Department determined County Court erred when it enhanced defendant’s sentence based solely on the indication in the presentence report that he had been arrested after his guilty plea:

On the day of sentencing, the court noted that, two weeks after defendant’s plea of guilty, defendant was arrested in the Town of Allegany and charged with a violation and a class A misdemeanor. The court thereafter imposed on defendant a term of imprisonment, rather than one of the lesser alternatives it had previously mentioned, based upon defendant’s postplea arrest. The record is clear that the court based its determination to impose a term of imprisonment solely on the information contained in the presentence report that defendant had been arrested and charged with the violation and misdemeanor. Notably, in response to the court’s inquiry concerning “what was happening” with that matter, defense counsel responded that he did not represent defendant on the matter and that it was still pending in local court. Thus, we conclude that, in imposing a term of imprisonment, the court erred in relying on the ” mere fact’ ” that defendant had been arrested …, and that it failed to “carry out an inquiry of sufficient depth to satisfy itself that there was a legitimate basis” for defendant’s arrest … . People v Kolata, 2014 NY Slip Op 05101, 4th Dept 7-3-14

 

Judge Properly Relied on Presentence Report to Refuse to Adjudicate Defendant a Youthful Offender

The Fourth Department determined that the trial judge’s refusal to adjudicate defendant a youthful offender, after a promise to do so, based upon information in the presentence report, constituted an adequate reason and explanation for the refusal:

“As a matter of law and strong public policy, a sentencing promise made in conjunction with a plea is conditioned upon ‘its being lawful and appropriate in light of the subsequent presentence report or information obtained from other reliable sources’ ” … .  Contrary to defendant’s contention, “the court’s reliance on the presentence report for its determination that defendant would not be afforded youthful offender status ‘constitutes an adequate explanation for the denial of defendant’s request for such status’ ” … . The presentence report “included mitigating and aggravating factors, [and therefore] adequately explained the court’s reasons for denying youthful offender status on the instant indictment” … .  People v Jamal H, 831, 4th Dept 9-27-13

 

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