People v Brown

[*1] People v Brown 2009 NY Slip Op 52532(U) [25 Misc 3d 1241(A)] Decided on December 1, 2009 County Court, Essex County Meyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 1, 2009
County Court, Essex County

The People of the State of New York, Plaintiff,

against

Vincent Brown, Defendant.



5160



Vincent Brown, Pro Se, Gowanda, New York.

Julie A. Garcia, Esq., Essex County District Attorney, Elizabethtown, New York.

Richard B. Meyer, J.

Application by the defendant for a copy of his presentence report for use in connection with an upcoming appearance before the parole board.

Access to presentence reports and their contents is limited (see CPL §390.50; 9 NYCRR §8000.5). Presentence reports are "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" (CPL §390.50[1]). A probation department is required to make a copy [*2]of a presentence report available "to any state agency to which the defendant is subsequently committed . . . or under whose care and custody or jurisdiction the defendant subsequently is placed upon the official request of such court or agency therefor" (CPL §390.50[3]). Also, a copy of a presentence report must accompany a defendant sentenced to a term of imprisonment and be delivered to "the person in charge of the correctional facility . . . to which the defendant is committed at the time the defendant is delivered thereto" (CPL §390.60). Finally, the Division of Parole "shall cause to be obtained and filed as soon as practicable information as complete as may be obtained with regard to each inmate wh is received in an institution under the jurisdiction of the state department of correctional services" including but not limited to "all presentence memoranda . . . and copies of such probation reports as may have been made as well as reports as to the inmate's social, physical, mental and psychiatric condition and history" (Executive Law §259-a[1]; see also 9 NYCRR §8000.5[a]).

Although a defendant has no right to a copy of the pre-sentence report unless he is not represented by an attorney (CPL §390.50[2][a]; see also People -v- Vaughan, 20 AD3d 940, 798 NYS2d 289, reargument denied, 21 AD3d 1442, 801 NYS2d 555, leave to appeal denied, 5 NY3d 587, 806 NYS2d 177, 840 NE2d 146), he or she may upon a proper showing obtain a copy by permission of the Court ( see Gutkaiss -v- People, 11 AD3d 845, 783 NYS2d 156 [parole hearing]; Kilgore -v- People, 274 AD2d 636, 710 NYS2d 690; People -v- Peetz, 4 Misc 3d 597, 781 NYS2d 418; People -v- Harris, 187 Misc 2d 591, 725 NYS2d 530 [appeal]). Furthermore, "[a]n inmate, a releasee or counsel for either may have access to information contained in the parole case record: (i) prior to a scheduled appearance before the board; (ii) prior to a scheduled appearance before an authorized hearing officer of the division; or (iii) prior to the timely perfecting of an administrative appeal of a final decision of the board" (9 NYCRR §8000.5[c]).

Here, the defendant has failed to establish that he has been unable to gain access to his parole records, which should contain a copy of his presentence report, or that he has exhausted his administrative remedies in an unsuccessful attempt to obtain such access. Significant as well is the defendant's failure to set forth any procedures by which the contents of that report would remain confidential, and would not be disclosed to unauthorized third parties, if provided to him. The defendant's application is therefore in all respects denied.

IT IS SO ORDERED.

ENTER

____________________________________

Richard B. Meyer

J.C.C.