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|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 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. Top of Page
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