Opinion
March 12, 2001
Anthony Harris, defendant, pro se.
Robert Valez, General Counsel (Cynthia R. Wong-Oriz of counsel), for NY City Dept. of Probation.
On January 12, 1993, the Supreme Court, Kings County, sentenced the defendant to ten years to life after the defendant was convicted of criminal, possession of a weapon in the third degree. Defendant, pro se, now moves this court, pursuant to New York Criminal Procedure Law 390.52(2), for an order permitting him to obtain a copy of the pre-sentence report prepared under Kings County Indictment 401/92. The defendant asserts that he seeks the report to prepare for his parole board appearance. The court in deciding this motion considered the defendant's motion and the affirmation submitted by counsel for the Department of Probation. The Department of Probation does not oppose this application.
A defendant has no constitutional right to obtain a copy of the pre-sentence report (People v. Peace, 18 N.Y.2d 330). Pursuant to Criminal Procedure Law 390.50 a pre-sentence report is "confidential and may not be made available to any person . . . except where specifically required or permitted by statute or upon specific authorization from the Court." Prior to 1975, there was no statutory right to obtain a copy of the probation report (Id.). However, a court did have the discretion to reveal the contents of a pre-sentence report to a defendant at sentencing (Id. at 237; People v. Perry, 36 N.Y.2d 114, 119; People v. Michael, 22 N.Y.2d 831).
In 1975, the Criminal Procedure Law was amended to add 390.50 (2), which provides that the sentencing court shall make the pre-sentence report available to the defendant for review or copying one day prior to sentencing. The purpose of this statute is to afford a defendant the opportunity at sentencing to contest any information in the probation report. (People v. Rogers, 54 A.D.2d 616, 617; People v. Ferrara, 91 Misc.2d 450, 452). Challenges to the contents of the pre-sentence report must be raised before sentencing. (Matter of Sciaraffo v. Department of Probation, 248 A.D.2d 919, 920; Matter of Salahuddin v. Mitchell, 232 A.D.2d 903, 904; Matter of Gayle v. Lewis, 212 A.D.2d 919, 920).
A defendant also has a statutory right to a copy of the pre-sentence report for purposes of appeal (CPL 390.50 (2); Matter of Legal Aid Bur. v. Armer, 74 A.D.2d 737; People v. Rogers, supra, 54 A.D.2d at 617) and for use before the parole board (CPL 390.50 (3); People v. Wright, 206 A.D.2d 337, 338). Although a sentencing court may disclose a pre-sentence report to a defendant for use before a parole board, the Third Department has recently held that a defendant must make a factual showing of need for the report. Although the court did not specify what would constitute a factual showing of need, the court did clarify that a defendant must demonstrate at least that he has been notified of an upcoming Parole Board hearing. (Kilgore v. People, 274 A.D.2d 636).
Defendant cites People v. Bonizio, 147 Misc.2d 1050 and In the Matter of Legal Aid Bureau of Buffalo v. Amer, 74 A.D.2d 737 for the proposition that he is entitled to a copy of the report. InBonizio, the court held that a defendant was entitled to a copy of his pre-sentence report after an application for parole release was denied by the parole board. The Bonizio court relied on In the Matter of Legal Aid of Buffalo in which the Fourth Department ordered disclosure of a pre-sentence report for use at a parole board hearing. However, Bonizio has been expressly rejected by the Third Department in Allen v. People, 243 A.D.2d 1039. The Allen court disagreed with the Bonizio decision and held that an inmate was not entitled to a copy of the pre-sentence report after his application for parole was denied.
In the present case, defendant merely states that he will be appearing shortly before the Parole Board. He does not state that he has been notified of an upcoming Parole Board hearing. Defendant does not make out a factual showing of need for the report.
Accordingly, the defendant's motion to obtain a copy of the pre-sentence report prepared is denied without prejudice to renew upon submission of proof that defendant has been notified of an upcoming hearing.