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                    ARTICLE 390--PRE-SENTENCE REPORTS
Section 390.10 Requirement of fingerprint report.
        390.15 Requirement of HIV related testing in certain cases.
        390.20 Requirement of pre-sentence report.
        390.30 Scope of pre-sentence investigation and report.
        390.40 Defendant`s or prosecutor`s pre-sentence memorandum.
        390.50 Confidentiality of pre-sentence reports and memoranda.
        390.60 Copy 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 ninety 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, 2013
  * 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, 2013
  (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.

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, 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
state director of probation and correctional alternatives 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  office of probation and
correctional alternatives. Investigating  agencies  under  this  article
shall  be responsible for the collection, and transmission to the office
of probation and correctional alternatives, of data  on  the  number  of
victim  impact  statements  prepared,  pursuant  to  regulations  of the
office. Such information shall be transmitted to the  office  of  victim
services  and  included  in  the  office's  annual  report  pursuant  to
subdivision twenty of section six hundred twenty-three of the  executive
law.
  * NB Sep amd -- cannot be put together
  * 5.  Information  to  be forwarded to the state division of probation
and correctional alternatives. Investigating agencies under this article
shall be responsible for the collection, and transmission to  the  state
division  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 annual report pursuant to subdivision twenty of section six
hundred twenty-three of the executive law.
  * NB Sep amd -- cannot be put together

  6. Interim probation supervision. 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. 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 may impose any
or all of the conditions relating to conduct and rehabilitation
specified in subdivisions two, four and five of section 65.10 of such
law; provided, however, that 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.

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.