N.Y. Comp. Codes R. & Regs. tit. 9 § 350.7

Current through Register Vol. 46, No. 45, November 2, 2024

Section 350.7 - Preparation of reports for criminal, juvenile delinquency, persons in need of supervision, and family offense proceedings

(a) Format and Scope of Report. The report shall be typed and all required identifying personal and legal information shall be set forth on the face sheet. For pre-dispositional/pre-plea/pre-sentence reports, the face sheet shall include, at a minimum, information as set forth in the DCJS probation Pre-dispositional/pre-plea/presentence Investigation Report Face sheet standardized template. The report may not necessarily include all information obtained through the investigation process as specified in Section 350.6. However, the report shall contain relevant and reliable information that may have a bearing upon the recommendation or court disposition/sentence as well as any information directed by the court.

(b) Content of report.

(1) Legal history: the legal history shall consist of all relevant and reliable information as set forth in section 350.6(b)(1) of this Part. A summary analysis of the legal history shall be prepared in paragraph form. It shall contain the following information:

(i) Family court history: dates of petitions/offenses/complaints; courts; fact findings and dates; adjudications/dispositions and dates. The legal history shall include, as permissible, prior and pending intake-diversion matters and petitions, family offense history, and the custody status of the respondent. The existence of current and/or prior orders of protection shall be detailed.

(ii) Criminal court history: dates of arrests/offenses/charges; courts; pleas/convictions and dates; adjudications/dispositions and dates. This information shall include pending charges and youthful offender adjudications. The existence of current and/or prior orders of protection shall be detailed.

(iii) Family Court pre-dispositional supervision compliance in present case.

(iv) Criminal court pretrial service(s) compliance in present offense.

(v) Voluntary assessment and case planning services: where a youth has engaged in such services, probation shall provide a summary of these efforts to the court within the pre-sentence investigation, as follows:

(a) Summary of any assessment findings;

(b) Referrals and progress with respect to mitigating risk;

(c) Addressing any identified criminogenic needs; and

(d) Progress of the youth with respect to achieving case plan goals.

(2) Current offense/act. The report shall synthesize information obtained from court documents, law enforcement agencies, the respondent/defendant and any other relevant and reliable sources utilized during the investigation, as set forth in section 350.6(c)(1)(iv) of this Part. It shall specify the custody status of the respondent/defendant. When the information is available, this section shall include:

(i) Description of the offense/act: the date, time, place, description of offense/act; use of force/forcible compulsion; weapons/dangerous instruments; injuries to victim(s); damage to or loss of property; whether respondent/defendant was under the influence of alcohol and/ or drugs; the name(s), age(s), and address(es) of accomplices/co-respondents/co-defendants, and their role(s) in the offense/act. For sex offense cases, victim's age at time of the offense/act, nature and length of offense conduct; type of sexual contact, and whether it occurred over or under clothing.

(ii) Arresting officer statement: the respondent's/defendant's behavior at time of taking into custody (for example, resistance, escape, denial), and whether respondent/defendant was under the influence of alcohol and/or drugs.

(iii) Respondent/defendant statement: include the respondent/defendant's description of the offense/act and events leading to commission of the offense/act; their acceptance of responsibility and perception of the impact/consequences of this offense/behavior for the victim(s), community, themselves, and others; and any statement related to the reasons for committing such offense(s) and their expressed future behavior, including willingness to seek treatment. Where the respondent/defendant declines to discuss the current offense/act, whether on the advice of counsel or on their own volition, this shall be noted in the report.

(iv) Victim information: the report shall contain all of the relevant and reliable information obtained during the investigation, as set forth in section 350.6(b)(3) of this Part, including where available, the victim(s) personal statement and the victim impact statement. It shall also contain an analysis of the victim information developed as a result of the investigation. Victim information is relevant to the recommendation or court disposition/ sentencing and shall be contained in a report whenever there is available information pertaining to a victim. If this information is not available, the reason(s) shall be stated in this section of the report. The report shall not include the address or the phone number of any victim or victim family member.

(v) Parent/guardian information: where the subject of the report is a juvenile, or where appropriate for a criminal court case involving an individual younger than 19 years of age at the time of the offense, the report shall contain the relevant and reliable information obtained from the parent/guardian during the investigation, as it relates to the current matter.

(3) Social circumstances. The report shall contain all relevant information related to the respondent's/defendant's social situation as set forth in section 350.6(b)(2) of this Part, and a concise description of current aspects of respondent's/defendant's personal and community relationships that are of significance to the respondent's/defendant's present or future functioning in the community and ability to lead a law-abiding life.

(4) Evaluative analysis. The evaluative analysis is not a restatement of the facts but a synthesis of the significant information reported previously in the document. No new information is to be introduced in this section. The evaluative analysis section shall contain a brief opening statement of the matter before the court and any specific legal considerations for disposition/sentencing. This section of the report shall provide a succinct analysis, relevant to decisionmaking, of the probation officer's assessment and conclusions from the information gathered throughout the interview and the investigation process. The evaluative analysis shall include the following elements:

(i) analysis of legal history, including the present offense/act;

(ii) impact of the present offense/act on the victim(s) and community;

(iii) analysis of past and present behavior patterns as they contribute to current legal situation;

(iv) analysis of current social circumstances and triggers as they contribute to current legal situation;

(v) analysis of risk factors and potential for future recidivism;

(vi) analysis of criminogenic need areas;

(vii) analysis of any current or prior participation in services to address criminogenic needs;

(viii) availability of community, family, and individual protective factors and treatment resources to address the criminogenic risk and needs; and

(ix) assessment of potential for lawful behavior.

(5) Recommendation. This section of the report shall contain a statement concerning the type of court disposition/sentence recommended, which shall be consistent with law, and shall flow logically from the evaluative analysis.

(i) Special conditions: when a period of probation supervision, interim probation supervision, or conditional discharge is recommended, any recommended or required special conditions shall flow from the evaluative analysis and, in accordance with law, support reparation, public safety and offender accountability. Special conditions shall be specific to the offense/act and the offender, and shall focus on:

[*] criminogenic risk reduction;

[*] offender compliance with State and Federal laws;

[*] measures to ameliorate the conduct which gave rise to the offense/petition, or prevent incarceration or placement;

[*] addressing social, educational, vocational, and treatment needs;

[*] incorporating special offender population requirements, where applicable, such as sex offender registry, ignition interlock, and electronic monitoring.

DNA sample collection shall be recommended as a special condition for all designated offenders. Further, DNA sample collection shall be considered for all non-designated offenders, except where the defendant, pursuant to a plea agreement has already signed a waiver authorizing DNA collection, or where youthful offender status is mandatory.

(ii) Incarceration: a recommendation for a specific length of incarceration may only be made as part of a split sentence of imprisonment and probation supervision. The maximum term of imprisonment for such a combined sentence cannot exceed 60 days for a misdemeanor; six months for a felony, and four months for intermittent incarceration.

(iii) Flexible term of probation supervision: where a variable term of probation supervision may be ordered, the department may make a recommendation regarding the length of the term of probation supervision.

(iv) Restitution: shall be recommended as part of any disposition/sentence where it is sought, up to maximum amounts permitted by law: for PINS--$1,000; JD--$1,500; family offense--$10,000; and in all criminal cases as permitted under Penal Law, section 60.27. A t a minimum, monetary conditions for restitution specified shall include the specific amount of restitution sought.

[*] Community-based disposition/sentence: where a community-based disposition/sentence is recommended, including a split sentence of jail and probation, or will likely be imposed, a special condition shall include the rate of payment and a date prior to expiration of the term of sentence that restitution must be satisfied.

[*] Jail-bound disposition/sentence: where jail is recommended or will likely be imposed, restitution shall be recommended.

[*] Prison-bound disposition/sentence: where prison is recommended or will likely be imposed, a rate of payment shall not be specified; the start date for payments shall not be recommended for deferral; and the recommendation to the court shall recognize that DOCS may collect restitution from income received during the period of incarceration.

(6) Certificate of relief from disabilities. Where the law provides and it is considered appropriate, the report shall specify reasons consistent with law as to the granting of a certificate of relief from disabilities at the time of sentencing in accordance with the requirements of section 350.10 of this Part.

(7) Request to except portions of report from disclosure. The report shall specify any portions of the report for which an exception from disclosure is requested and the probation officer's rationale for the exception. The identified portions shall be submitted in a separate section of the report in a manner independent of the body of the report, but made a part thereof. Such exceptions shall be requested where: a source has requested confidentiality; disclosure would endanger the safety of any person; disclosure of portions of the report would not be relevant to a proper disposition; a diagnostic opinion might seriously disrupt a program of rehabilitation; or disclosure would not be in the interest of justice.

(8) HIV-Related Information. Where there is HIV-related in formation, this must be submitted in accordance with DCJS AIDS/ Confidentiality and Access to HIV-Related Information Rule, specifically Section 367.6.

(9) Signing of the report. The report shall be signed and dated by the preparing probation officer and the reviewing probation officer when designated. The use of an unalterable electronic signature and date-stamping process is permissible where it positively identifies the probation officer preparing the report and the person(s) reviewing the report, as well as the actual signature date(s).

(10) Anticipated transfers of supervision. Where it appears a disposition/sentence of probation supervision will be recommended or likely be imposed, and it is anticipated that the respondent/defendant will request a transfer of probation supervision to another jurisdiction at disposition/sentencing, the investigating probation department shall conduct the following:

(i) Intrastate Transfer: where the respondent/defendant is living in another jurisdiction in NewYork State at the time of preparation of the report, the probation officer shall secure all required information to complete the transfer packet, pursuant to DCJS's Interstate and Intrastate Transfer of Probation Supervision For Adults And Juveniles Rule, Part 349, and provide form DCJS OPCA 16 or DCJS OPCA 16A, whichever is applicable, to the court for consideration and signature.

(ii) Interstate transfer: where the respondent/defendant is living in another state at the time of preparation of the report, the probation officer shall assess whether the offender meets criteria for transfer and provide the court with information as to likelihood of acceptance by the other state. Coordination with the probation department's interstate designee(s) is recommended. Further, the probation officer shall secure all required information to complete the transfer packet of materials, pursuant to the appropriate Interstate Compact.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 350.7

Amended New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019