N.Y. Criminal Procedure Law § 390.50: Confidentiality of pre-sentence reports and memoranda

§ 390.50 Confidentiality of pre-sentence reports and memoranda.

1. In general. Any pre-sentence report or memorandum submitted to the

court pursuant to this article and any medical, psychiatric or social

agency report or other information gathered for the court by a probation

department, or submitted directly to the court, in connection with the

question of sentence 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. For purposes of this section, any report, memorandum or other

information forwarded to a probation department within this state from a

probation agency outside this state is governed by the same rules of

confidentiality. Any person, public or private agency receiving such

material must retain it under the same conditions of confidentiality as

apply to the probation department that made it available.

2. Pre-sentence report; disclosure, victim access to impact

statements; general principles. (a) Not less than one court day prior

to sentencing, unless such time requirement is waived by the parties,

the pre-sentence report or memorandum shall be made available by the

court for examination and for copying by the defendant's attorney, the

defendant himself, if he has no attorney, and the prosecutor. In its

discretion, the court may except from disclosure a part or parts of the

report or memoranda which are not relevant to a proper sentence, or a

diagnostic opinion which might seriously disrupt a program of

rehabilitation, or sources of information which have been obtained on a

promise of confidentiality, or any other portion thereof, disclosure of

which would not be in the interest of justice. In all cases where a part

or parts of the report or memoranda are not disclosed, the court shall

state for the record that a part or parts of the report or memoranda

have been excepted and the reasons for its action. The action of the

court excepting information from disclosure shall be subject to

appellate review. The pre-sentence report shall be made available by the

court for examination and copying in connection with any appeal in the

case, including an appeal under this subdivision. Upon written request,

the court shall make a copy of the presentence report, other than a part

or parts of the report redacted by the court pursuant to this paragraph,

available to the defendant for use before the parole board for release

consideration or an appeal of a parole board determination or an

application for resentencing pursuant to section 440.46 or 440.47 of

this chapter. In his or her written request to the court the defendant

shall affirm that he or she anticipates an appearance before the parole

board or intends to file an administrative appeal of a parole board

determination or meets the eligibility criteria for and intends to file

a motion for resentencing pursuant to 440.46 of this chapter or has

received notification from the court which received his or her request

to apply for resentencing pursuant to section 440.47 of this chapter

confirming that he or she is eligible to submit an application for

resentencing pursuant to section 440.47 of this chapter. The court shall

respond to the defendant's written request within twenty days from

receipt of the defendant's written request.

(b) The victim impact statement prepared pursuant to subdivision three

of section 390.30 of this article shall be made available by the

prosecutor prior to sentencing to the victim or victim's family in

accordance with his responsibilities under subdivision one of section

60.27 of the penal law and sections six hundred forty-one and six

hundred forty-two of the executive law. The district attorney shall also

give at least twenty-one days notice to the victim or victim's family of

the date of sentencing and of the rights of the victim pursuant to

subdivision two of section 380.50 of this chapter, including the victim

or victim's family's obligation to inform the court of its intention, at

least ten days prior to the sentencing date, to make a statement at

sentencing. If the victim has not received timely notice pursuant to

this paragraph, the court may proceed with sentencing if it determines

that the victim and the defendant have received reasonable notice or may

adjourn sentencing for no more than seven days in order to afford such

reasonable notice. Failure to give notice shall not affect the validity

of any sentence imposed.

3. Public agencies within this state. A probation department must make

available a copy of its pre-sentence report and any medical, psychiatric

or social agency report submitted to it in connection with its

pre-sentence investigation or its supervision of a defendant, to any

court, or to the probation department of any court, within this state

that subsequently has jurisdiction over such defendant for the purpose

of pronouncing or reviewing sentence and to any state agency to which

the defendant is subsequently committed or certified or under whose care

and custody or jurisdiction the defendant subsequently is placed upon

the official request of such court or agency therefor. In any such case,

the court or agency receiving such material must retain it under the

same conditions of confidentiality as apply to the probation department

that made it available, except that an agency with jurisdiction as that

term is defined in subdivision (a) of section 10.03 of the mental

hygiene law shall make such material available to the commissioner of

mental health, attorney general, case review panel, or psychiatric

examiners described in article ten of the mental hygiene law when such

persons or entities request such material in the exercise of their

statutory functions, powers, and duties under article ten of the mental

hygiene law.

4. Public agencies outside this state. Upon official request of any

probation, parole or public institutional agency outside this state, a

probation department may make any information in its files available to

such agency. Any such release of information shall be conditioned upon

the agreement of the receiving agency to retain it under the same

conditions of confidentiality as apply to the probation department that

made it available.

5. Division of criminal justice services. Nothing contained in this

section may be construed to prevent the voluntary submission by a

probation department of data in its files to the division of criminal

justice services.

6. Professional licensing agencies. Probation departments shall

provide a copy of presentence reports prepared in the case of

individuals who are known to be licensed pursuant to title eight of the

education law to the state department of health if the licensee is a

physician, a specialist's assistant or a physician's assistant, and to

the state education department with respect to all other such licensees.

Such reports shall be accumulated and forwarded every three months,

shall be in writing, may be submitted in a hard copy or electronically,

and shall contain the following information:

(a) the name of the licensee and the profession in which licensure is

held,

(b) the date of the conviction and the nature thereof,

(c) the index or other identifying file number.

In any such case, the state department receiving such material must

retain it under the same conditions of confidentiality as apply to the

probation department that made it available.