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Article 390 - NY Criminal Procedure Law

PRE-SENTENCE REPORTS

Section Description
390.10Requirement of fingerprint report.
390.15Requirement of HIV related testing in certain cases.
390.20Requirement of pre-sentence report.
390.30Scope of pre-sentence investigation and report.
390.40Defendant`s or prosecutor`s pre-sentence memorandum.
390.50Confidentiality of pre-sentence reports and memoranda.
390.60Copy of reports to accompany defendant sentenced to imprisonment.
S 390.10 Requirement of fingerprint report.
  In any case where the defendant is convicted of an offense specified
in subdivision one of section 160.10, the court may not pronounce
sentence until it has received a fingerprint report from the division of
criminal justice services or a police department report with respect to
the defendant`s prior arrest record.   For such purpose, the court may
use the original fingerprint report obtained after the arrest or
arraignment of the defendant, or it may direct that a new report be
prepared and transmitted to it.

S 390.15 Requirement of HIV related testing in certain cases.
  1. (a) In any case where the defendant is convicted of a felony
offense enumerated in any section of article one hundred thirty of the
penal law, or any subdivision of section 130.20 of such law, where an
act of "sexual intercourse", "oral sexual conduct" or "anal sexual
conduct," as those terms are defined in section 130.00 of the penal law,
is required as an essential element for the commission thereof, the
court must, upon a request of the victim, order that the defendant
submit to human immunodeficiency (HIV) related testing. The testing is
to be conducted by a state, county, or local public health officer
designated by the order. Test results, which shall not be disclosed to
the court, shall be communicated to the defendant and the victim named
in the order in accordance with the provisions of section twenty-seven
hundred eighty-five-a of the public health law, but such results and
disclosure need not be completed prior to the imposition of sentence.
  (b) For the purposes of this section, the terms "defendant",
"conviction" and "sentence" mean and include, respectively, an "eligible
youth," a "youthful offender finding" and a "youthful offender sentence"
as those terms are defined in section 720.10 of this chapter. The term
"victim" means the person with whom the defendant engaged in an act of
"sexual intercourse", "oral sexual conduct" or "anal sexual conduct", as
those terms are defined in section 130.00 of the penal law, where such
conduct with such victim was the basis for the defendant`s conviction of
an offense specified in paragraph (a) of this subdivision.
  2. Any request made by the victim pursuant to this section must be in
writing, filed with the court and provided by the court to the defendant
or his or her counsel. The request must be filed with the court prior to
or within ten days after entry of the defendant`s conviction; provided
that, for good cause shown, the court may permit such request to be
filed at any time before sentence is imposed.
  3. Any requests, related papers and orders made or filed pursuant to
this section, together with any papers or proceedings related thereto,
shall be sealed by the court and not made available for any purpose,
except as may be necessary for the conduct of judicial proceedings
directly related to the provisions of this section. All proceedings on
such requests shall be held in camera.
  4. The application for an order to compel a convicted person to
undergo an HIV related test may be made by the victim but, if the victim
is an infant or incompetent person, the application may also be made by
a representative as defined in section twelve hundred one of the civil
practice law and rules. The application must state that (a) the
applicant was the victim of the offense enumerated in paragraph (a) of
subdivision one of this section of which the defendant stands convicted;
and (b) the applicant has been offered counseling by a public health
officer and been advised of (i) the limitations on the information to be
obtained through an HIV test on the proposed subject; (ii) current
scientific assessments of the risk of transmission of HIV from the
exposure he or she may have experienced, and (iii) the need for the
applicant to undergo HIV related testing to definitively determine his
or her HIV status.
  5. The court shall conduct a hearing only if necessary to determine if
the applicant is the victim of the offense of which the defendant was
convicted. The court ordered test must be performed within fifteen days
of the date on which the court ordered the test, provided, however, that
whenever the defendant is not tested within the period prescribed by the
court, the court must again order that the defendant undergo an HIV
related test.
  6. (a) Test results shall be disclosed subject to the following
limitations, which shall be specified in any order issued pursuant to
this section:
  (i) disclosure of confidential HIV related information shall be
limited to that information which is necessary to fulfill the purpose
for which the order is granted;
  (ii) disclosure of confidential HIV related information shall be
limited to the person making the application; redisclosure shall be
permitted only to the victim, the victim`s immediate family, guardian,
physicians, attorneys, medical or mental health providers and to his or
her past and future contacts to whom there was or is a reasonable risk
of HIV transmission and shall not be permitted to any other person or
the court.
  (b) Unless inconsistent with this section, the court`s order shall
direct compliance with and conform to the provisions of article
twenty-seven-F of the public health law. Such order shall include
measures to protect against disclosure to others of the identity and HIV
status of the applicant and of the person tested and may include such
other measures as the court deems necessary to protect confidential
information.
  7. Any failure to comply with the provisions of this section or
section twenty-seven hundred eighty-five-a of the public health law
shall not impair or affect the validity of any sentence imposed by the
court.
  8. No information obtained as a result of a consent, hearing or court
order for testing issued pursuant to this section nor any information
derived therefrom may be used as evidence in any criminal or civil
proceeding against the defendant which relates to events that were the
basis for the defendant`s conviction, provided however that nothing
herein shall prevent prosecution of a witness testifying in any court
hearing held pursuant to this section for perjury pursuant to article
two hundred ten of the penal law.

S 390.20 Requirement of pre-sentence report.
  1.  Requirement  for felonies. In any case where a person is convicted
  of a felony, the court must order a pre-sentence  investigation  of  the
  defendant  and  it  may  not  pronounce sentence until it has received a
  written report of such investigation.
    2. Requirement for misdemeanors. Where a  person  is  convicted  of  a
  misdemeanor a pre-sentence report is not required, but the court may not
  pronounce  any  of  the  following  sentences  unless  it  has ordered a
  pre-sentence investigation of the defendant and has received  a  written
  report thereof:
    (a)   A   sentence   of  probation  except  where  the  provisions  of
  subparagraph (ii) of paragraph (a) of subdivision four of  this  section
  apply;
    (b)  A  sentence  of  imprisonment for a term in excess of one hundred
  eighty days;
    (c) Consecutive sentences of imprisonment with terms aggregating  more
  than ninety days.
    3.  Permissible  in any case. For purposes of sentence, the court may,
  in its discretion, order a pre-sentence investigation and report in  any
  case,  irrespective of whether such investigation and report is required
  by subdivision one or two.
    4. Waiver. (a) Notwithstanding the provisions of  subdivision  one  or
  two of this section, a pre-sentence investigation of the defendant and a
  written  report  thereon  may  be  waived  by  the mutual consent of the
  parties and with consent of the  judge,  stated  on  the  record  or  in
  writing, whenever:
    (i) A sentence of imprisonment has been agreed upon by the parties and
  will be satisfied by the time served, or
    (ii)  A  sentence of probation has been agreed upon by the parties and
  will be imposed, or
    (iii) A report has been prepared in the preceding twelve months, or
    (iv) A sentence of probation is revoked.
    * Provided, however, a pre-sentence investigation of the defendant and
  a written report thereon shall not be  waived  if  an  indeterminate  or
  determinate sentence of imprisonment is to be imposed.
    * NB Effective until September 1, 2017
    * Provided, however, a pre-sentence investigation of the defendant and
  a  written  report  thereon  shall  not  be  waived  if an indeterminate
  sentence of imprisonment is to be imposed.
    * NB Effective September 1, 2017
    (b) Whenever a pre-sentence investigation and report has  been  waived
  pursuant  to  subparagraph  (i),  (ii) or (iii) of paragraph (a) of this
  subdivision and the court determines  that  such  information  would  be
  relevant  to  the  court disposition, a victim impact statement shall be
  provided in accordance with this section.
    5.  Negotiated  sentence  of  imprisonment.  In  any  city  having   a
  population  of one million or more and notwithstanding the provisions of
  subdivision one or two of this section, a pre-sentence investigation and
  written report thereon shall not be required where a negotiated sentence
  of imprisonment for a term of three hundred sixty-five days or less  has
  been mutually agreed upon by the parties with consent of the judge, as a
  result of a conviction or revocation of a sentence of probation.

S 390.30 Scope of pre-sentence investigation and report.
  1.  The  investigation. The pre-sentence investigation consists of the
  gathering of information with respect to the circumstances attending the
  commission of the offense, the defendant's  history  of  delinquency  or
  criminality,  and  the  defendant's  social history, employment history,
  family situation, economic status, education, and personal habits.  Such
  investigation  may  also  include  any  other  matter  which  the agency
  conducting the investigation deems relevant to the question of sentence,
  and must include any matter the court directs to be included.
    2. Physical and mental examinations. Whenever information is available
  with respect to the  defendant's  physical  and  mental  condition,  the
  pre-sentence   investigation   must   include   the  gathering  of  such
  information. In the case of a felony or a class A misdemeanor, or in any
  case where a person under the age of twenty-one is convicted of a crime,
  the court may order that the defendant undergo a  thorough  physical  or
  mental  examination  in a designated facility and may further order that
  the defendant remain in such facility for such purpose for a period  not
  exceeding thirty days.
    3.  The  report  and  victim  impact  statement. (a) The report of the
  pre-sentence investigation must contain an analysis of as  much  of  the
  information  gathered  in the investigation as the agency that conducted
  the investigation deems relevant to the question of sentence. The report
  must also include any other imformation that the  court  directs  to  be
  included  and the material required by paragraph (b) of this subdivision
  which shall be considered part of the report.
    (b) The report shall also contain a victim impact statement, unless it
  appears  that  such  information  would  be  of  no  relevance  to   the
  recommendation  or court disposition, which shall include an analysis of
  the victim's version of the offense, the extent of  injury  or  economic
  loss  and  the  actual out-of-pocket loss to the victim and the views of
  the victim relating to disposition including the amount  of  restitution
  and  reparation  sought by the victim after the victim has been informed
  of the  right  to  seek  restitution  and  reparation,  subject  to  the
  availability of such information. In the case of a homicide or where the
  victim  is  unable  to  assist  in  the preparation of the victim impact
  statement, the information may be acquired from the victim's family. The
  victim impact statement shall be made available to  the  victim  by  the
  prosecutor  pursuant  to  subdivision  two  of  section  390.50  of this
  article. Nothing contained in  this  section  shall  be  interpreted  to
  require  that  a  victim  supply information for the preparation of this
  report.
    4. Abbreviated investigation and short form report.  In  lieu  of  the
  procedure  set forth in subdivisions one, two and three of this section,
  where the conviction is of a misdemeanor the scope of  the  pre-sentence
  investigation  may  be  abbreviated and a short form report may be made.
  The use of  abbreviated  investigations  and  short  form  reports,  the
  matters  to  be  covered therein and the form of the reports shall be in
  accordance with the general rules regulating methods and  procedures  in
  the  administration  of  probation  as  adopted from time to time by the
  commissioner of the division of criminal justice  services  pursuant  to
  the  provisions  of  article  twelve of the executive law. No such rule,
  however, shall be construed so as to relieve the agency  conducting  the
  investigation of the duty of investigating and reporting upon:
    (a)  the  extent  of  the  injury  or  economic  loss  and  the actual
  out-of-pocket loss to the victim including the amount of restitution and
  reparation sought by the victim, after the victim has been  informed  of
  the right to seek restitution and reparation, or
    (b)  any  matter  relevant  to the question of sentence that the court
  directs to be included in particular cases.
    5.  Information  to  be forwarded to the state office of probation and
  correctional alternatives. Investigating  agencies  under  this  article
  shall  be  responsible for the collection, and transmission to the state
  office of probation and correctional alternatives, of data on the number
  of  victim  impact  statements  prepared.  Such  information  shall   be
  transmitted  annually  to  the office of victim services and included in
  the office's biennial  report  pursuant  to  subdivision  twenty-one  of
  section six hundred twenty-three of the executive law.
    6.  Interim  probation  supervision.  (a)  In any case where the court
  determines that a defendant is eligible for a sentence of probation, the
  court, after consultation with the prosecutor and upon  the  consent  of
  the  defendant, may adjourn the sentencing to a specified date and order
  that the defendant be placed on interim  probation  supervision.  In  no
  event  may  the  sentencing be adjourned for a period exceeding one year
  from the date the conviction is entered, except  that  upon  good  cause
  shown,  the  court  may, upon the defendant's consent, extend the period
  for an additional one year where the defendant  has  agreed  to  and  is
  still participating in a substance abuse treatment program in connection
  with  a  court designated a drug court by the chief administrator of the
  courts. When ordering that the defendant be placed on interim  probation
  supervision,  the  court  shall impose all of the conditions relating to
  supervision specified in subdivision three of section 65.10 of the penal
  law and the court may impose any or all of the  conditions  relating  to
  conduct and rehabilitation specified in subdivisions two, four, five and
  five-a  of  section  65.10  of  such  law.  The defendant must receive a
  written copy of any such conditions at the time he or she is  placed  on
  interim probation supervision. The defendant's record of compliance with
  such  conditions,  as  well  as any other relevant information, shall be
  included in the  presentence  report,  or  updated  presentence  report,
  prepared  pursuant  to  this  section,  and the court must consider such
  record  and  information  when  pronouncing  sentence.  If  a  defendant
  satisfactorily  completes a term of interim probation supervision, he or
  she shall receive credit for the time served under the period of interim
  probation supervision toward any probation sentence that is subsequently
  imposed in that case.
    (b) In  its  discretion,  the  supervising  probation  department  may
  utilize  the  provisions  of  sections  410.20,  410.30, 410.40, 410.50,
  410.60 and 410.92 of this title, where applicable.

S 390.40 Defendant`s or prosecutor`s pre-sentence memorandum.
  1. Either the defendant or prosecutor may, at any time prior to the
pronouncement of sentence, file with the court a written memorandum
setting forth any information he may deem pertinent to the question of
sentence.  Such memorandum may include information with respect to any
of the matters described in section 390.30. The defendant may annex
written statements by others in support of facts alleged in the
memorandum.
  2. The memorandum of the prosecutor shall be served on the defendant`s
attorney at least ten days prior to the date fixed for sentence.

S 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.

S 390.60 Copy of reports to accompany defendant sentenced to imprisonment.
  1. Cases where copy of report is required.  Whenever a person is
sentenced to a term of imprisonment, a copy of any pre-sentence report
prepared, a copy of any pre-sentence memorandum filed by the defendant
and a copy of any medical, psychiatric or social agency report submitted
to the court or to the probation department in connection with the
question of sentence must be delivered to the person in charge of the
correctional or division for youth facility to which the defendant is
committed at the time the defendant is delivered thereto.  When a person
is committed to any hospital operated by the office of mental health or
referred to any program established pursuant to section four hundred one
of the correction law, from a correctional facility or division for
youth facility, the person in charge of the correctional facility or
division for youth facility shall ensure that a copy of any pre-sentence
report concerning such person, a copy of any pre-sentence memorandum
filed by such person, and a copy of any medical, psychiatric or social
agency report submitted to the court or to the probation department in
connection with the question of sentence is provided to such hospital or
program.
  2. Effect of failure to deliver required report.  A commitment is not
void by reason of failure to comply with the provisions of subdivision
one, but the person in charge of the correctional facility to which the
defendant has been delivered in execution of the sentence is authorized
to refuse to accept custody of such person until the required report is
delivered.

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