2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title L - Sentence › Article 390 - Pre-Sentence Reports › 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.