Opinion
23878.
November 18, 2003.
MR. LIBERDO DELATORRE, #97-A-5226, Collins Correctional Facility, P.O. Box 340, Collins, New York.
HON. ELIOT SPITZER, Attorney General, State of New York, 101 East Post Road, White Plains, New York, for Defendant, By: Robin A. Forshaw, Esq.
DECISION ORDER
Defendant, by notice of motion and accompanying affidavit dated August 21, 2003, has made an application to the Court for the production of his pre-sentence report pursuant to CPL § 390.50. The motion was transferred to this Court due to the unavailability of the Hon. Peter Leavitt by reason of his retirement from the bench.
The defendant seeks access to his pre-sentence report for use in the preparation of an administrative appeal of the Parole Board's decision denying him discretionary release. In the response papers, the Attorney General aptly points out the lack of consensus among the Departments regarding an individual's right to disclosure of a presentence report, and invites this Court to choose between the varying schools of thought.
Controlling authority establishes that there is no constitutional right to a copy of a presentence report ( People v. Peace, 18 N.Y.2d 230, 273 N.Y.S.2d 64, 219 N.E.2d 419).
The Fourth Department has interpreted CPL § 390.50(2) as bestowing upon a defendant a "clear legal right" to review presentence reports for the purpose of preparing briefs and for use before the Parole Board ( Matter of the Legal Aid Bureau of Buffalo v. Armer, 74 A.D.2d 737, 425 N.Y.S.2d 706). This view appears to be shared by the First Department ( see People v. Wright, 206 A.D.2d 337, 338, 614 N.Y.S.2d 732, app. denied 84 N.Y.2d 873, 618 N.Y.S.2d 19, 642 N.E.2d 338). Although the Appellate Division failed to reach the merits of the defendant's motion, in its dicta the court acknowledged a "clear legal right" to review a presentence report for use before the Parole Board, citing to the Fourth Department's decision in Matter of the Legal Aid Bureau (Id). The court further opined that, since such a right exists, no showing of relevancy is required ( Id.).
The Appellate Division dismissed defendant's appeal on the ground that no appeal lies, either of right or by permission, from the denial of a motion for the disclosure of a presentence report.
The First Department's reasoning appears, at least to this Court, to be incongruous with the Fourth Department's ruling. In Wright, the First Department specifically stated, albeit in dicta, that the language "appeal under this subdivision" contained in CPL § 390.50(2) could not be interpreted to include an appeal from a Parole Board ruling ( Id.). It is difficult, therefore, to discern from whence this "clear legal right" arises. The Wright court relies on the decision in Matter of the Legal Aid Bureau in support of the right of disclosure, however, the Fourth Department's holding was premised upon the existence of a statutory right conferred by CPL § 390.50(2), the existence of which was rejected by the First Department.
In contrast, both the Second and Third Departments have held that no statutory right exists for the disclosure of presentence reports and that such disclosure can only be obtained "upon specific authorization of the court" pursuant to CPL § 390.50(1) ( Matter of Thomas v. Scully, 131 A.D.2d 488, 489-90, 515 N.Y.S.2d 885; Matter of Blanche v. People, 193 A.D.2d 991, 991-92, 598 N.Y.S.2d 102; Matter of Hoyle v. People, 274 A.D.2d 633, 710 N.Y.S.2d 257; Matter of Kilgore v. People, 274 A.D.2d 636, 710 N.Y.S.2d 690).
A review of the relevant case law reveals that it is well settled in the Third Department that in the absence of a statutory right to disclosure, CPL § 390.50(1) "permits disclosure of a presentence report in collateral proceedings upon a proper factual showing for the need thereof" ( Matter of Shader v. People, 233 A.D.2d 717, 650 N.Y.S.2d 350; Matter of Kilgore, 274 A.D.2d at 636; Matter of Hoyle, 274 A.D.2d at 633). While it is clear that the Second Department does not recognize a statutory right to disclosure in collateral proceedings, an exhaustive search of relevant case law has failed to produce any decisions in which the Court discusses the standard to be applied by a court when reviewing a motion for authorization of disclosure. In the absence of any controlling authority, this Court finds the decisions from the Third Department persuasive on this issue.
At least one lower Court in the Second Department has addressed this issue ( People v. Tatta, 2001 WL 1607869). To the extent that the Court in Tatta followed the holdings in Armer and Wright, this Court respectfully disagrees.
Application of the requirement for a factual showing would seem a logical extension of the Second Department's holding requiring court authorization for disclosure in connection with collateral proceedings. However, it is less clear what constitutes a proper factual showing. In Matter of Shader, decided by the Third Department in 1996, the court held that since a presentence report is one of the factors the Parole Board is required to consider upon an application for release pursuant to Executive Law §§ 259-i(1)(a) (2)(c), the defendant had met his burden ( Matter of Shader, 233 A.D.2d at 717). Only one year later, the Court adopted a more stringent standard which requires "some indication in the record" that the Parole Board actually considered the presentence report in rendering its decision ( Matter of Allen v. People, 243 A.D.2d 1039, 1040, 663 N.Y.S.2d 455) . There appears to be a trend in that Department to require a more significant showing of need prior to disclosure of a presentence report in connection with the preparation of an appeal of a Parole Board decision.
Any attempt to reconcile the disparity among the respective departments is not feasible under the current state of the law. This Court, relying on the holding of the Second Department in Matter of Thomas v. Scully, finds that no statutory right to disclosure exists in collateral proceedings and disclosure can only be obtained through Court authorization ( see also CPL § 390.50). The Court is further persuaded by the case law in the Third Department that such disclosure should only be granted upon a factual showing of need therefor ( Matter of Shader, 233 A.D.2d at 717; Matter of Kilgore, 274 A.D.2d at 636; Matter of Hoyle, 274 A.D.2d at 633).
The question then becomes what constitutes a proper factual showing in the context of an appeal from an adverse Parole Board determination. While it is true that a presentence report is one of the statutory factors which the Parole Board must consider upon an application for discretionary release, to hold that this fact, standing alone, triggers the right to disclosure would appear to abrogate the requirement of a factual showing of need for access to the report. A fair balance between maintaining the confidentiality of presentence reports and an individual's bona fide need for access to such a report would seem to suggest that there must be at least some indication in the record before the Court from which a logical inference may be drawn that the Parole Board actually relied on information contained in the presentence report.
Applying these principles to the facts and circumstances of the present case, the defendant states in his moving papers that he seeks disclosure of the presentence report in connection with an appeal of an adverse determination of the Parole Board. A review of the decision indicates that the Parole Board relied upon the facts and circumstances surrounding the commission of the crime and defendant's arrest which provided the basis, in large part, for the denial of discretionary parole. It can be inferred from the detailed facts recited in the decision that this information was contained in the presentence report. Therefore, it is the holding of this Court that the defendant has met his burden of making a proper factual showing of his need for disclosure of the presentence report in a collateral proceeding. However, even though a factual showing has been made, the defendant is not automatically entitled to an unredacted copy, as such reports consist of confidential material which may be appropriately withheld from disclosure ( Matter of Shader, 233 A.D.2d at 717).
To the extent defendant moves to challenge the accuracy of the presentence report, such challenges must be raised before sentencing ( Matter of Hughes v. New York City Dept. of Probation, 281 A.D.2d 229, 721 N.Y.S.2d 770; Matter of Antonucci v. Nelson, 298 A.D.2d 388, 389, 751 N.Y.S.2d 395; Matter of Sciaraffo v. New York City Dept. of Probation, 248 A.D.2d 477, 669 N.Y.S.2d 513; Matter of Salahuddin v. Mitchell, 232 A.D.2d 903, 904, 649 N.Y.S.2d 353; Matter of Salerno v. Murphy, 292 A.D.2d 837, 837-38, 738 N.Y.S.2d 626; People v. Banchs-Rivera, 168 Misc.2d 72, 73, 643 N.Y.S.2d 330).
The probation department is directed to provide a copy of the pre-sentence report to defendant for the purpose of preparing an administrative appeal. The probation department is further directed to redact any confidential material which may be appropriately withheld from disclosure including, but not limited to, names, addresses and telephone numbers.