Senate Bill S4365A

                                 BILL NUMBER:  S4365A

 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 decisions 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 factual
showing that justifies the need for disclosure.  CPL 390.50(1); Matter
of Gutkaiss, 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 period and due process requires that the inmate have a copy of
his or her presentence report to properly and effectively prepare for
an application 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 Board 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 allegations 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.