Assembly Bill A3492

                                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.