Opinion
93-01676.
Decided April 17, 2009.
LEGAL ASSISTANCE CORPORATION OF WESTERN NEW YORK, Jason D. Hoge, of counsel, for the Defendant.
ANDREW M. CUOMO, for the NYS Division of Probation and the NYS Division of Parole.
DANIEL M. DeLAUSE, Monroe County Attorney, Stefanie L. Guido, of counsel, for the Monroe County Department of Probation.
In February 1993, the defendant was charged with Rape, 3rd Degree and Endangering the Welfare of a Child. Pursuant to a plea offer extended to the defendant, he pleaded guilty to the latter crime and was sentenced to an intermittent sentence of incarceration. Defendant is now one of several individuals joined in an action, in the United States District Court for the Western District of New York, against the New York State Division of Parole, the New York State Board of Parole, and others, seeking relief, pursuant to 42 USC 1983, from the imposition of special sex offender conditions on the terms and conditions of his parole, for a conviction unrelated to his 1993 conviction.
The name of the defendant in the title of the criminal action in the City Court of Rochester was stated as Bryan Vazquez.
The defendant was apparently convicted of Criminal Sale of a Controlled Substance, 1st Degree in Monroe County and was released to parole on November 16, 2007 (Individuals Under Parole Supervision, http://161.11.122.150/ParoleeLookup/details.asp?nysid=06996926N [accessed April 12, 2009])
Defendant's counsel has moved this court for an order, pursuant to CPL 390.50(1), directing the Monroe County Office of Probation to furnish counsel with a copy of the presentence investigation prepared for the 1993 conviction, alleging that the information contained in that report was a factor in the imposition of the special conditions imposed on the defendant by the Board of Parole and review of the report was essential to prosecution of the federal action.
The defendants in the federal action take no position with respect to the request. However, disclosure of the report is opposed by the Monroe County Probation Department, which contends that caselaw in the Fourth Department precludes disclosure of the report in collateral proceedings.
In pertinent part, CPL 390.50(1) provides that any pre-sentence report submitted to the court "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." The Monroe County Department of Probation's relies on Salamone v Monroe County ( 136 AD2d 967), for the proposition that disclosure of a presentence investigation for use in a collateral proceeding is never proper, flows from the following quotation in that case: "[m]oreover, CPL 390.50(1) does not authorize disclosure of a presentence report in a collateral proceeding discrete from the proceeding for which the report was initially prepared even when requested by the attorney for the subject of the report." ( 136 AD2d at 967).
In cases arising other than in the Fourth Department, no issue exists as to whether CPL 390.50(1) permits the court ordered disclosure of pre-sentence reports for use in a collateral proceeding. Rather, the issues generally revolve around whether the application alleges a sufficient factual predicate to warrant disclosure ( see e.g. Shader v People, 233 AD2d 717; Blanche v People, 193 AD2d 991) and whether authority for disclosure was sought before the sentencing court ( see e.g. Holmes v State, 140 AD2d 854; Thomas v Scully, 131 AD2d 488).
This quoted language from Salamone has been construed by some to mean that disclosure of a pre-sentence report may never be authorized for use in a collateral proceeding ( Blanche v People v 193 AD2d 991; People v Owens, 183 Misc 2d 208). Indeed, one commentator, citing Salamone and Blanche has opined that a split of authority exists on the issue (Preiser, Practice Commentary, McKinney's Cons Laws on NY, Book11A, CPL 390.50, at 358).
However, in this court's opinion no such split of authority exists and the Fourth Department adheres to the rule that CPL 390.50(1) does permit the disclosure of pre-sentence reports for use in collateral proceedings. In reviewing the decision and the record on appeal in Salamone, it is noted that defendant made an ex-parte application to County Court for disclosure of reports prepared for Family Court and "youthful offender matters." The record shows that the defendant, in preparing a defense for new charges then pending before the grand jury, sought disclosure of pre-sentence reports prepared for sentencing or dispositional courts other than that to which the disclosure application had been made. Rather than announcing a stark departure from the patent statutory authority granted the court to authorize disclosure, the quoted language in Salamone simply asserts that disclosure of the report under CPL 390.50(1) may not be authorized by the court presiding in the collateral matter. That is in keeping with the case law discussed above which requires that the CPL390.50(1) application be made to the sentencing court.
The affidavit of the Assistant County Attorney representing the appellant in Salamone stated, "[t]he probation file contains essentially four sets of documents. First, there are several Probation Reports to Family Court concerning juvenile delinquency matters, the most recent of which is dated January 4, 1984. . . .Third, there is a pre-plea investigation report to Monroe County Court in connection with a subsequent Youthful Offender adjudication on May 13, 1987 by Judge Celli (Record on Appeal, page 49).
The Fourth Department put to rest any perceived split in authority on this issue in People v Summers ( 242 AD2d 868). Which, when faced with a claim that defendant was denied his right to cross-examination by a trial court which refused to authorize disclosure of the pre-sentence reports of his co-defendants, the Salamone court, citing Blanche v People ( 193 AD2d 991), found that the defendant failed to make a sufficient showing to authorize disclosure and upheld the lower court ruling.
The defendant, in the case at bar, has made a sufficient showing to warrant disclosure of the pre-sentence report. To deny counsel the opportunity to review the report which forms the basis for the parole board's classification of the defendant would severely hamper the defendant's ability to adequately contest the Parole Board's action.
The application is therefore granted. Submit order.