People v LaRocca

[*1] People v LaRocca 2007 NY Slip Op 51471(U) [16 Misc 3d 1118(A)] Decided on August 2, 2007 Westchester County Ct Bellantoni, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 2, 2007
Westchester County Ct

People of the State of New York,

against

James LaRocca, Defendant.



85-0390



White Plains, New York

ADA Joseph M. Latino

Westchester County

District Attorney's Office

111 Martin Luther King Jr., Blvd.

White Plains, New York 10601

James LaRocca 86A9738

Pro Se

57 Sanatarium Rd., P.O. Box 8

Otisville, NY 10963

Rory J. Bellantoni, J.

On or about September 19, 1986, Defendant was convicted after a jury trial of the crime of Murder in the Second Degree. On November 28, 1986, Defendant was sentenced to an indeterminate term of twenty years to life imprisonment for the Murder conviction. Defendant's conviction was affirmed on April 8, 1991 by the Appellate Division, Second Department. People v. LaRocca, 172 AD2d 628, 568 NYS2d 431 (2nd Dep't 1991). [*2]

The Court notes that Defendant previously filed a request in April 2005, for the disclosure of his pre-sentence report to prepare for his appearance before the parole board, which at that time was scheduled for August 2005. By Order dated May 10, 2005, the Hon. Joseph A. Alessandro, JCC, denied Defendant's motion as premature, stating "defendant's request is denied as premature with leave to renew should his hearing result in a denial of parole and he chooses to file an appeal."

Thereafter, on September 19, 2005, Defendant moved this Court for an order disclosing his pre-sentence report for his next parole board hearing, which is scheduled for August 2007. Defendant asserted that he needed the report to prepare for his appearance before the parole board. The People asserted that Defendant's motion should be denied because he has not made a sufficient showing of need for disclosure of the report.

On or about November 23, 2005, this Court denied Defendant's motion for a copy of his pre-sentence report finding that Defendant failed to demonstrate a need for the disclosure of his pre-sentence report in that he failed to establish that he had been notified of an impending parole board hearing. People v. Gutkaiss, 11 AD3d 845, 783 NYS2d 156. In addition, Defendant failed to articulate a need for the report nearly two years before his tentatively scheduled hearing in August, 2007. Consequently, Defendant's motion was denied with leave to renew upon a proper showing.

On or about February 10, 2006, Defendant again moved this Court for an order disclosing his pre-sentence report for his August 2007 parole board hearing. This Court once again denied Defendant's application by decision and order, filed and entered on April 20, 2006, finding that Defendant failed to articulate a need for the report.

Defendant has now filed the instant application for an order disclosing his pre-sentence report for his August 22, 2007 parole board hearing. Defendant's Exhibit A. While the People assert in their response papers that Defendant has failed to demonstrate a sufficient showing of need for the disclosure of the pre-sentence report, the People also state that they "take no position on the disclosure of the pre-sentence report, noting only that in the interests of protecting confidentiality, the pre-sentence report should be appropriately redacted." People's Affirmation, pgs 6-7.

There is no constitutional right to the disclosure of a pre-sentence report. People v. Peace, 18 NY2d 230, 273 NYS2d 64 (1966). NY CRIM. PROC. Law Article 390 governing pre-sentence reports, provides that a pre-sentence report must be made available to the defendant or his attorney for inspection and copying at least one day prior to sentencing. NY CRIM. PROC. Law §390.50(2). The statute also provides that a defendant has the right to a copy of the pre-sentence report for purposes of appeal. NY CRIM. PROC. Law §390.50(2).

There are no statutory provisions governing whether a Defendant is entitled to a pre-sentence report to prepare for a parole board hearing. Nor is there any controlling case law in [*3]the Second Department concerning whether a defendant is entitled to disclosure of a pre-sentence report to prepare for a parole board hearing. Indeed, the Second Department has held that there is no specific statutory authority for the disclosure of a pre-sentence report, and that a pre-sentence report may be obtained only upon specific authorization of the Court. See Matter of Thomas v. Scully, 131 AD2d 488, 515 NYS2d 885 (2nd Dep't 1987). Nonetheless, there is no controlling case law detailing the showing, if any, a defendant is required to make in order to obtain such disclosure.

Both the First and Fourth Departments have held that a defendant has a "clear legal right" to disclosure of a pre-sentence report for use before the parole board, and that a defendant need not make a specific showing of need for said report. See, People v. Wright, 206 A.D2d 337, 614 NYS2d 732 (1st Dep't 1994); Matter of Legal Aid Bureau of Buffalo v. Armer, 74 AD2d 737, 425 NYS2d 706 (4th Dep't 1980); see also, Hill v. Sciarrotta, 140 F.3d 210 (2d Cir. 1998).

Although the Second Department has not ruled on whether a defendant is entitled to disclosure of a pre-sentence report and the showing, if any, a defendant must make for such disclosure, at least one court in the Second Department has followed the reasoning of People v. Wright and Matter of Legal Aid Bureau of Buffalo v. Armer. In People v. Tatta, the Supreme Court, Queens County, following Wright and Armer, granted defendant's motion for a copy of his pre-sentence report and held that a defendant's right to a redacted copy of a pre-sentence report for use before the parole board, as well as for an administrative appeal from a denial of parole, is well-established. People v. Tatta, 2001 WL 1607869, 2001 NY Slip Op. 40407(U) (Sup Ct. Queens Co. 2001); see also, People v. Elliott, 8 Misc 3d 1020(A) (Sup. Ct. Kings. Co. 2005) (finding defendant has a legal right to disclosure of the pre-sentence report for purpose of parole board appearance); People v. Mejia, 5 Misc 3d 1013(A), 798 NYS2d 712 (Sup. Ct. Nassau Co. 2004) (defendant entitled to review copy of pre-sentence report since parole officials would use report as a guideline for parole eligibility).[FN1]

In contrast, the Third Department has held that a defendant who seeks disclosure of a pre-sentence report must show a specific need for the report, which may be satisfied by demonstrating that defendant has been notified of an upcoming parole board hearing. See e.g., People v. Gutkaiss, (supra )(petitioner's bare assertion that he needed a copy of the pre-sentence investigation report to prepare for his appearance before the parole board without an indication that there is an upcoming parole hearing scheduled, insufficient to constitute factual showing of need for report); Kilgore v. People, 274 AD2d 636, 710 NYS2d 690 (3rd Dep't 2000); Hoyle v. State of New York, 274 AD2d 633, 710 NYS2d 257 (3rd Dep't 2000); Allen v. People, 243 AD2d 1039, 663 NYS2d 455 (3rd Dep't 1997). [*4]

Several trial courts in the Second Department have chosen to follow the Third Department's rationale. In People v. Harris, the Supreme Court, Kings County, denied defendant's motion for disclosure of a pre-sentence report because defendant did not make a sufficient factual showing of need. According to the Court, "defendant must demonstrate at least that he has been notified of an upcoming Parole Board hearing". People v. Harris, 187 Misc 2d 591, 725 NYS2d 530 (Sup. Ct. Kings Co. 2001).

Similarly, in People v. Delatorre, 2 Misc 3d 385, 767 NYS2d 766 (Co. Ct. Westchester Co. 2003), the Court held that a defendant may obtain disclosure of a pre-sentence report to prepare for a parole board appeal where defendant demonstrates a need for the pre-sentence report. In Delatorre, the defendant moved for disclosure of his pre-sentence report asserting that he required the report to prepare for his parole board appeal. The Court granted defendant's motion since the record before the Court demonstrated that the parole board relied upon the pre-sentence report in denying defendant parole. People v. Delatorre, 2 Misc 3d at 388, 767 NYS2d at 768; see also, People v. Cartier, 4 Misc 3d 1028(A), 798 NYS2d 346 (Sup. Ct. Nassau Co. 2003)(denying defendant's request for a copy of his pre-sentence report for parole board appeal finding defendant's request to be premature).

In this case, it is clear that Defendant would be entitled to a copy of his pre-sentence report irrespective of whether this Court chooses to follow the legal standard in the Third Department, or the standard enunciated in the First and Fourth Departments.[FN2] Pursuant to the case law in the First and Fourth Departments, Defendant herein has a "clear legal right" to his pre-sentence report and is entitled to its disclosure. See , People v. Wright, (supra ); Matter of Legal Aid Bureau of Buffalo v. Armer, (supra ). Moreover, Defendant herein has made a showing of need for the report , sufficient for disclosure under the Third Department's standard since he is scheduled for a parole hearing on August 22, 2007, and the pre-sentence report is one of the factors required to be considered by the parole board upon application for release. See Executive Law §259-i[1][a]; [2][c]; Kilgore v. People, (supra ); People v. Tatta, (supra ).

Accordingly, Defendant's motion is granted to the extent that the Department of Probation is directed to redact any and all confidential material, including but not limited to names, addresses, and telephone numbers, in defendant's pre-sentence report and to send a copy of the redacted report to Defendant, forthwith, but no later than five(5) days prior to the date Defendant is scheduled to appear before the Parole Board. See People v. Tatta, (supra ); Shader v. People, 233 AD2d 717, 650 NYS2d 350 (3d Dep't 1996).

The foregoing constitutes the decision and order of this Court.

Dated:August 2, 2007___________________________________

Hon. Rory J. Bellantoni, J.C.C.

White Plains, New York

ADA Joseph M. Latino

Westchester County

District Attorney's Office

111 Martin Luther King Jr., Blvd.

White Plains, New York 10601

James LaRocca 86A9738

Pro Se

57 Sanatarium Rd., P.O. Box 8

Otisville, NY 10963 Footnotes

Footnote 1: These cases appear to be contrary to the decisions of other trial courts in the Second Department, which have held that a defendant must demonstrate a showing of need to obtain a copy of his pre-sentence report for a parole board hearing, or parole board appeal. See People v. Harris, 187 Misc 2d 591, 725 NYS2d 530 (Sup. Ct. Kings Co. 2001); People v. Delatore, 2 Misc 3d 385, 767 NYS2d 766 (Co. Ct. Westchester Co. 2003), discussed herein.

Footnote 2: As articulated herein, lower courts in the Second Department have followed the holdings articulated in the Third Department, as well as those of the First and Fourth Departments. See People v. Tatta, 2001 WL 1607869 (Sup Ct. Queens Co. 2001); People v. Harris, 187 Misc 2d 591, 725 NYS2d 530 (Sup. Ct. Kings Co. 2001) .