§ 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.
(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.
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, 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.
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