senate Bill S5490

2011-2012 Legislative Session

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 imposed

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Archive: Last Bill Status - Passed Senate


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 18, 2012 referred to codes
delivered to assembly
passed senate
ordered to third reading cal.1277
committee discharged and committed to rules
Jan 04, 2012 referred to codes
May 25, 2011 referred to codes

Votes

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S5490 - Bill Details

See Assembly Version of this Bill:
A7621
Current Committee:
Law Section:
Criminal Procedure Law
Laws Affected:
Amd §390.20, rpld sub 4 ¶(a) cl ¶, CP L

S5490 - Bill Texts

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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 imposed.

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BILL NUMBER:S5490

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to the requirement of
preparing pre-sentence reports and the waiver of such reports under
certain circumstances, and to repeal the closing paragraph of paragraph
(a) of subdivision 4 of section 390.20 of such law relating to waiver of
pre-sentence reports where indeterminate sentences are to be imposed

SUMMARY OF PROVISIONS:
This bill would amend several provisions of
Criminal Procedure Law ("CPL") § 390.20. First, section 1 of the bill
would amend subdivision 1 to provide that the requirement that the
court order a pre-sentence investigation ("PSI") when a person is
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 proposed. Section 2 of the bill would amend
subdivision 2 of CPL § 390.20 to provide that a pre-sentence report
("PSR") would not be required in the case of a person who has been
convicted of a misdemeanor.

Subdivision 4 of CPL § 390.20, addressing waiver of a PSR or a PSI,
would be amended by section 3 of the bill to provide that where a PSI
or PSR is required by CPL § 390.20(1), it can 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. The prescription against allowing
waiver of a PSI or PSR where an indeterminate or determinate sentence
has been imposed, in effect until September 1, 2011 and found in the
closing paragraph of CPL § 390.20(4)(a), would be eliminated.
Finally, section 4 of the bill would repeal the provisions of such
closing paragraph of CPL § 390.20(4)(a) that go back into effect on
September 1, 2011, with the result that waiver of the PSI would
be allowed under circumstances where an indeterminate sentence has
been imposed.

REASONS FOR SUPPORT:
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 approximately 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
Department of Probation (DOP) supervision.

Currently, probation departments are required to conduct PSIs and a
written report on all defendants convicted in felony cases. The
proposed legislation would amend Criminal Procedure Law (CPL)
§ 390.20 to require PSIs for all felony cases, except where a
negotiated 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 imprisonment has already been agreed upon by plea, PSIs


are therefore 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 any misdemeanor
case. (Pursuant to existing CPL § 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 existing CPL § 390.20(3) allows judges
to order a PSI in any case when they believe 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
consideration of this proposal by the Legislature.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5490

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              May 25, 2011
                               ___________

Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the criminal procedure law, in relation to the  require-
  ment  of preparing pre-sentence reports and the waiver of such reports
  under certain circumstances, and to repeal the  closing  paragraph  of
  paragraph  (a) of subdivision 4 of section 390.20 of such law relating
  to waiver of pre-sentence reports where indeterminate sentences are to
  be imposed

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision 1 of section 390.20 of the criminal procedure
law is amended to read as follows:
  1. Requirement for felonies. In any case where a person  is  convicted
of  a  felony,  the court must order a pre-sentence investigation of the
defendant and it may not pronounce sentence  until  it  has  received  a
written  report of such investigation.  THIS REQUIREMENT SHALL NOT APPLY
WHEN A NEGOTIATED SENTENCE OF IMPRISONMENT HAS BEEN AGREED UPON  BY  THE
PARTIES  AS  A  RESULT  OF  A  CONVICTION OR REVOCATION OF A SENTENCE OF
PROBATION, AND NO SENTENCE OF PROBATION WILL BE IMPOSED.
  S 2. Subdivision 2 of section 390.20 of the criminal procedure law, as
amended by chapter 413 of the laws of 1991, paragraph (b) as amended  by
section 179 of the laws of 2010, is amended to read as follows:
  2.  Requirement  for  misdemeanors.  Where  a person is convicted of a
misdemeanor a pre-sentence report is not required[, but  the  court  may
not  pronounce  any  of  the following sentences unless it has ordered a
pre-sentence investigation of the defendant and has received  a  written
report thereof:
  (a)  A  sentence  of probation except where the provisions of subpara-
graph (ii) of paragraph (a) of subdivision four of this section apply;
  (b) A sentence of imprisonment for a term in  excess  of  one  hundred
eighty days;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11283-01-1

S. 5490                             2

  (c)  Consecutive sentences of imprisonment with terms aggregating more
than ninety days].
  S 3. Subdivision 4 of section 390.20 of the criminal procedure law, as
added by chapter 413 of the laws of 1991, the closing paragraph of para-
graph  (a)  as  amended  by chapter 3 of the laws of 1995, is amended to
read as follows:
  4. Waiver. (a) [Notwithstanding the provisions of subdivision  one  or
two  of  this  section, a] A pre-sentence investigation of the defendant
and a written report thereon, WHEN REQUIRED PURSUANT TO SUBDIVISION  ONE
OF  THIS SECTION, may be waived by the mutual consent of the parties and
with consent of the judge, stated on the record or in writing, whenever:
  (i) [A sentence of imprisonment has been agreed upon  by  the  parties
and will be satisfied by the time served, or
  (ii)]  A sentence of probation has been agreed upon by the parties and
will be imposed, or
  [(iii)] (II) A report  has  been  prepared  in  the  preceding  twelve
months[, or
  (iv) A sentence of probation is revoked.
  Provided, however, a pre-sentence investigation of the defendant and a
written report thereon shall not be waived if an indeterminate or deter-
minate sentence of imprisonment is to be imposed].
  (b)  Whenever  a pre-sentence investigation and report has been waived
pursuant to subparagraph (i)[,] OR (ii) [or (iii)] of paragraph  (a)  of
this subdivision and the court determines that such information would be
relevant  to  the  court disposition, a victim impact statement shall be
provided in accordance with this section.
  S 4. The closing paragraph  of  paragraph  (a)  of  subdivision  4  of
section 390.20 of the criminal procedure law, as added by chapter 413 of
the laws of 1991, is REPEALED.
  S  5.  This  act shall take effect on the ninetieth day after it shall
have become a law, provided, however, that the amendments to the closing
paragraph of paragraph (a) of subdivision 4 of  section  390.20  of  the
criminal  procedure  law  made  by  section  three  of this act shall be
subject to the expiration and reversion of such  paragraph  pursuant  to
subdivision  d  of  section  74  of  chapter  3  of the laws of 1995, as
amended, when upon such date the provisions of section four of this  act
shall take effect.

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