Matter of Roper v Carway

[*1] Matter of Roper v Carway 2004 NY Slip Op 50891(U) Decided on July 15, 2004 Supreme Court, Nassau County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 15, 2004
Supreme Court, Nassau County

IN THE MATTER OF APPLICATION OF VERNON ROPER No. 03R4016, Plaintiff(s),

against

JOHN CARWAY, DIRECTOR OF THE NASSAU COUNTY DEPARTMENT OF PROBATION, Defendant(s).



5501/04

Geoffrey J. O'Connell, J.

In this proceeding, Petitioner VERNON ROPER, representing himself, seeks an Order pursuant to CPLR Article 78 vacating and setting aside Respondent NASSAU COUNTY Probation Department's determinations, set forth in a Pre-Sentence Report from June, 2003.

This Pre-Sentence report was reviewed by the Nassau County Court Judge who sentenced defendant to 1 ½ to 3 years upon a plea of guilty by the defendant, VERNON ROPER to Attempted Assault 2nd Degree, a violation of Penal Law §110/120.05, and two counts of Attempted Criminal Possession of a Weapon, a violation of Penal Law Section 110/265.02(1). Petitioner claims that the information in the Pre-Sentence Report is false and misleading and is being used to deny him Parole. He seeks an Order directing the Probation Department to delete any reference to an injury to any victim and to delete any references to an

alleged knife. The Petitioner contends that the alleged victim was never injured or slashed as reported in the Report in question.

In his second application Petitioner ROPER seeks an Order pursuant to CPLR § 2302(b) and § 2306, compelling production of the original probation report, the original Felony Complaint with Supporting Depositions, as well as any medical records and grand jury testimony of the alleged victim.

The Respondent COUNTY opposes the request and seeks a dismissal of these requests and this action pursuant to CPLR § 7804(f).

The motion of the Respondent is Granted.

As to the alleged errors in the Pre-Sentence Report, there is no evidence that at any time prior to sentence upon Petitioner's voluntary plea of guilty to felony convictions, he requested and was Denied an opportunity to review and challenge the Report. Objections to the content of a Pre-Sentence report must be made at the time of sentencing or they are waived. Gayle v. Lewis, 212 AD2d 919 (3rd Dept 1995). Thus the request for an amendment approximately ten months later, is untimely.

As to the requests for a subpoena to produce the items sought, that request is also Denied. Petitioner's application for production of certain documents through civil subpoenas, pursuant to CPLR § 2302 and § 2306, must be Denied, as procedurally improper and without merit, as the items sought are exempt from production in this action. CPLR § 2301; People v. Norman, 76 Misc.2d 644 (1973).

As to the original Pre-Sentence report, Criminal Procedure Law Sec. 390.50 is the exclusive procedure concerning access to such reports, as they are confidential and specifically exempted from disclosure pursuant to State and Federal Freedom of Information Laws. Petitioner may not seek them from this Court but must make a proper application to the Court which sentenced him. CPL § 390.50(1); People v. Morrow, NYLJ, August 25, 1999, p. 21 (S.Ct.Queens 1999); People v. Perry, 36 NY2d 114 (1975); Thomas v. Scully, 131 AD2d 488 (2nd Dept 1987); Blanche v. People, 193 AD2d 991 (3rd Dept 1993).

As to the medical records and/or any statements of the alleged victim or witness, alleged to be in possession of the Respondent, that information is also confidential and exempt from discovery. CPL § 390.50. Finally, as to the Grand Jury testimony sought, such testimony is again confidential in nature and may not

be obtained through this Court by use of a civil subpoena as requested, nor is it obtainable by Court Order without proper basis. People v. DiNapoli, 27 NY2d 229 (1970).

Based on the evidence presented, the motions of the Petitioner are Denied in their entirety. The motion of the COUNTY for a dismissal of this proceeding is Granted.

It is, SO ORDERED.

Dated: _________________________________

HON. GEOFFREY J. O'CONNELL, J.S.C.