People v Zarzuela

[*1] People v Zarzuela 2006 NY Slip Op 50573(U) [11 Misc 3d 1076(A)] Decided on January 12, 2006 Supreme Court, Queens County Rios, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2006
Supreme Court, Queens County

The People of the State of New York

against

Rafael Zarzuela, Defendant.



N10811/01



RAFAEL ZARZUELA, PRO SE

For the Motion

DEPARTMENT OF PROBATION

BY: GAYLE A. DAVIS,

ASSISTANT GENERAL COUNSEL

Jaime A. Rios, J.

Defendant, pro se, makes this motion requesting a copy of the pre-sentence report. In an affirmation in opposition the Department of Probation takes no position as to the release of the pre-sentence report.

Section 390.50(1) of the Criminal Procedure Law provides that any pre-sentence report "is 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."

In Legal Aid Bureau of Buffalo v Armer, 74 AD2d 737, the court ordered the disclosure of a pre-sentence report for use at a Parole Board hearing. The court indicated that petitioner has a clear legal right to review the pre-sentence report for the purpose of preparing briefs and for use before the Parole Board. [*2]

Subsequent to conviction, a defendant has a specific statutory right to a copy of the pre-sentence report only in connection with a direct appeal (see, CPL § 390.50[2][a]; People v Wright, 206 AD2d 337, lv denied 84 NY2d 873).

As there is no pending appeal (CPL § 390.50[2][a]), and because defendant has not made a proper showing of need for the report (CPL § 390.50[l]; Matter of Campney v People, 279 AD2d 882; Matter of Kilgore v People, 274 AD2d 636), the motion for a copy of his pre-sentence report is denied.

This constitutes the decision and order of the court.

The clerk of the court is directed to mail copies of this decision and order to defendant at his place of incarceration and to the District Attorney.

GLORIA D'AMICO

Clerk

Date: JANUARY 12, 2006

JAMIE A. RIOS, J.S.C.