Section 390.50. Confidentiality of pre-sentence reports and memoranda  


Latest version.
  • 1.  In general. Any pre-sentence report or memorandum submitted to the
      court pursuant to this article and any medical,  psychiatric  or  social
      agency report or other information gathered for the court by a probation
      department,  or  submitted directly to the court, in connection with the
      question of sentence 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.  For  purposes  of  this section, any report, memorandum or other
      information forwarded to a probation department within this state from a
      probation agency outside this state is governed by  the  same  rules  of
      confidentiality.  Any  person,  public  or private agency receiving such
      material must retain it under the same conditions of confidentiality  as
      apply to the probation department that made it available.
        2.   Pre-sentence   report;   disclosure,   victim  access  to  impact
      statements; general principles. (a) Not less than one court day prior to
      sentencing, unless such time requirement is waived by the  parties,  the
      pre-sentence  report  or memorandum shall be made available by the court
      for examination  and  for  copying  by  the  defendant's  attorney,  the
      defendant  himself,  if  he  has no attorney, and the prosecutor. In its
      discretion, the court may except from disclosure a part or parts of  the
      report  or  memoranda  which are not relevant to a proper sentence, or a
      diagnostic  opinion  which  might  seriously  disrupt   a   program   of
      rehabilitation,  or sources of information which have been obtained on a
      promise of confidentiality, or any other portion thereof, disclosure  of
      which would not be in the interest of justice. In all cases where a part
      or  parts  of the report or memoranda are not disclosed, the court shall
      state for the record that a part or parts of  the  report  or  memoranda
      have  been  excepted  and  the reasons for its action. The action of the
      court  excepting  information  from  disclosure  shall  be  subject   to
      appellate review. The pre-sentence report shall be made available by the
      court  for  examination and copying in connection with any appeal in the
      case, including an appeal under this subdivision.
        (b) The victim impact statement prepared pursuant to subdivision three
      of section 390.30 of  this  article  shall  be  made  available  by  the
      prosecutor  prior  to  sentencing  to  the  victim or victim's family in
      accordance with his responsibilities under subdivision  one  of  section
      60.27  of  the  penal  law  and  sections  six hundred forty-one and six
      hundred forty-two of the executive law. The district attorney shall also
      give at least twenty-one days notice to the victim or victim's family of
      the date of sentencing and of the  rights  of  the  victim  pursuant  to
      subdivision  two of section 380.50 of this chapter, including the victim
      or victim's family's obligation to inform the court of its intention, at
      least ten days prior to the sentencing date,  to  make  a  statement  at
      sentencing.  If  the  victim  has not received timely notice pursuant to
      this paragraph, the court may proceed with sentencing if  it  determines
      that the victim and the defendant have received reasonable notice or may
      adjourn  sentencing  for no more than seven days in order to afford such
      reasonable notice. Failure to give notice shall not affect the  validity
      of any sentence imposed.
        3. Public agencies within this state. A probation department must make
      available a copy of its pre-sentence report and any medical, psychiatric
      or  social  agency  report  submitted  to  it  in  connection  with  its
      pre-sentence investigation or its supervision of  a  defendant,  to  any
      court,  or  to  the probation department of any court, within this state
      that subsequently has jurisdiction over such defendant for  the  purpose
      of  pronouncing  or  reviewing sentence and to any state agency to which
      the defendant is subsequently committed or certified or under whose care
    
      and custody or jurisdiction the defendant subsequently  is  placed  upon
      the official request of such court or agency therefor. In any such case,
      the  court  or  agency  receiving such material must retain it under the
      same  conditions of confidentiality as apply to the probation department
      that made it available, except that an agency with jurisdiction as  that
      term  is  defined  in  subdivision  (a)  of  section 10.03 of the mental
      hygiene law shall make such material available to  the  commissioner  of
      mental  health,  attorney  general,  case  review  panel, or psychiatric
      examiners described in article ten of the mental hygiene law  when  such
      persons  or  entities  request  such  material  in the exercise of their
      statutory functions, powers, and duties under article ten of the  mental
      hygiene law.
        4.  Public  agencies  outside this state. Upon official request of any
      probation, parole or public institutional agency outside this  state,  a
      probation  department may make any information in its files available to
      such agency. Any such release of information shall be  conditioned  upon
      the  agreement  of  the  receiving  agency  to  retain it under the same
      conditions of confidentiality as apply to the probation department  that
      made it available.
        5.  Division  of  criminal justice services. Nothing contained in this
      section may be construed  to  prevent  the  voluntary  submission  by  a
      probation  department  of  data in its files to the division of criminal
      justice services.
        6.  Professional  licensing  agencies.  Probation  departments   shall
      provide   a  copy  of  presentence  reports  prepared  in  the  case  of
      individuals who are known to be licensed pursuant to title eight of  the
      education  law  to  the  state department of health if the licensee is a
      physician, a specialist's assistant or a physician's assistant,  and  to
      the state education department with respect to all other such licensees.
      Such  reports  shall  be  accumulated  and forwarded every three months,
      shall be in writing, and shall contain the following information:
        (a) the name of the licensee and the profession in which licensure  is
      held,
        (b) the date of the conviction and the nature thereof,
        (c) the index or other identifying file number.
        In  any  such  case, the state department receiving such material must
      retain it under the same conditions of confidentiality as apply  to  the
      probation department that made it available.