People v Jones

[*1] People v Jones 2012 NY Slip Op 50122(U) Decided on January 25, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 25, 2012
County Court, Essex County

The People of the State of New York, Plaintiff,

against

Robert Jones, Defendant.



2989



Robert Jones, Pro Se, Elmira Correctional Facility, Elmira, New York.

Kristy L. Sprague, 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]). Generally, 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) or upon a proper showing is granted permission of the Court to obtain a copy ( see Gutkaiss -v- People, 11 AD3d 845, 783 NYS2d 156 [parole hearing]; Kilgore -v- People, 274 AD2d 636, 710 NYS2d 690; People -v- [*2]Peetz, 4 Misc 3d 597, 781 NYS2d 418; People -v- Harris, 187 Misc 2d 591, 725 NYS2d 530 [appeal]).

In connection with parole hearings, "[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])[FN1]. However, "access by the Division of Parole shall not be granted to reports, documents and materials of other agencies, including but not limited to probation reports, drug abuse and alcoholism rehabilitation records, and the DCJS report" (9 NYCRR §8000.5[c][2][i][b]), unless authorized "by the chairman upon good cause shown" (9 NYCRR §8000.5[c][2][ii]). The report sought by the defendant here already is, or should be, in the possession of the Parole Board and it is within the authority of the Chairman to allow the defendant access to that report.

Here, the defendant has failed to allege or establish that he has been unable to gain access to his parole records, which should contain a copy of his presentence report, despite the ability of the Chairman of the Parole Board to grant such access. Access does not require that the defendant be furnished with a physical copy of the report, and it may be satisfied by allowing the defendant to review under supervision all or any portion of the report "which will be considered by the board or authorized hearing officer at a hearing or pursuant to an administrative appeal of a final decision of the board" (9 NYCRR §8000.5[c][2][i]). The defendant has not shown that he has exhausted his administrative remedies in an unsuccessful attempt to obtain such access (see La Bounty v. Russi, 208 AD2d 1071, 617 NYS2d 651, appeal dismissed 85 NY2d 889, 626 NYS2d 753, 650 NE2d 412). Significant as well is the defendant's failure to set forth any procedures or safeguards which he would employ to insure that the contents of that report, if provided to him, would remain confidential and would not be disclosed to unauthorized third parties in order "to prevent disclosures of information [*3]to inmates and releasees that would jeopardize legitimate correctional interests of security, custody, supervision or rehabilitation" (9 NYCRR §800.5[c][2]). Finally, the defendant does not explain why he requires access to his presentence report for the proceeding before the Parole Board, how such access will provide him with information relevant and material to the issues pending before such Board, or why the information he seeks cannot be obtained from sources other than the presentence report.

For the foregoing reasons, the defendant's application is in all respects denied. To the extent that this decision differs from People v. Brown, 25 Misc 3d 1241(A), 906 NYS2d 774 [Table], 2009 WL 4840211 [NYCoCt], 2009 NY Slip Op 52532[U]), Brown should not be followed.

It is so ordered.

ENTER

____________________________________

Richard B. Meyer, J.C.C. Footnotes

Footnote 1:Notably, the Division of Parole is required to procure "as soon as practicable information as complete as may be obtained with regard to each inmate who 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]). In this regard, a copy of an inmate's presentence report is available from the Department of Correctional Services since a copy of the 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). A copy of that report can also be obtained by the Parole Board from the appropriate probation department because a copy of a presentence report must be made 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]). Certainly, the Parole Board is such a state agency.