By notice of motion, signed on December 12, 2006, petitioner, Anthony Muniz moves pro se for an order directing the New York City Department of Probation (hereinafter NYCDOP) to provide him with a copy of his pre-sentence report pertaining to the instant indictment pursuant to CPL §390.50. Petitioner served the motion on the King's County District Attorney's Office (hereinafter KCDA) and the NYCDOP.

Petitioner's affidavit in support of the motion advises that he needs the pre-sentence report in anticipation of preparing for a hearing before the parole board. The KCDA did not appear or submit opposition to the motion. NYCDOP also did not appear, however, its general counsel submitted a letter to the court, dated February 26, 2007, advising that it takes no position on petitioner's application. The letter referenced an attached memorandum apparently emanating from the Deputy Chief Administrative Judge. The memorandum pertains to motions for release of pre-sentence reports and is addressed to several administrative judges. The memorandum, dated January 23, 2007, advised the administrative judges that effectively immediately, NYCDOP waives notice and an opportunity to be heard on all post-sentence motions brought by defendants for release of their pre-sentence reports. Petitioner's request is, therefore, unopposed by KCDA and the NYCDOP.

Criminal Procedure Law §390.50 [1], states in pertinent part, that "any pre-sentence report or memorandum submitted to the court gathered by a probation department in connection with the question of sentence, is confidential and may not be made available to any person except where specifically required or permitted statute or upon specific authorization of the court. CPL §390.50[2] states that the pre-sentence report shall be made available by the court for examination and for copying by the defendant's attorney, the defendant, if he has no attorney, and [*2]the prosecutor, not less than one court day prior to sentencing.

Prior to 1975, the pre-sentence report was completely confidential and neither the defense nor the prosecution had an opportunity to review it. Although this state of affairs has never been considered to be a violation of constitutional due process (see, People v Perry, 36 NY2d 114 [1975]), the New York Legislature, responding to suggestions by the Court of Appeals, amended CPL §390.50 by inserting what is now subdivision 2(a). Accordingly, the law now requires disclosure of the report to both sides, subject to the discretionary authority of the court to exclude certain defined categories of information from disclosure. Where the court does exclude a portion of the report from disclosure, it nevertheless must disclose that fact and its reason for so doing upon the record, which action is subject to appellate review (see generally McKinney's Practice Commentaries to CPL §390.50 by Peter Preiser).

A problem has arisen from time to time regarding confidentiality is the question of whether a court has authority to order release of the report for use by a party (the defendant or another) in a collateral proceeding (McKinney's Practice Commentaries to CPL §390.50 by Peter Preiser).

CPL§390.50[1], gives the court discretionary authority to order disclosure in circumstances where the law does not specifically authorize it, but fails to provide any criterion for exercise of this discretion. The cases are fairly well in accord that the court with authority to order disclosure is the sentencing court, as distinguished from a court where a collateral proceeding is pending (see Holmes v State, 140 AD2d 854 [3rd Dept. 1988]; Thomas v Scully, 131 AD2d 488 [2nd Dept. 1987])(McKinney's Practice Commentaries to CPL §390.50 by Peter Preiser). Many of the applications are from inmates of correctional facilities seeking to utilize the report to argue for assignment to a particular institutional program or for release on parole (see Campney v People, 279 AD2d 882 [3rd Dept. 2001]; and there is a split of authority on the question of whether the report can ever be made available for use in a collateral proceeding (compare Salamone v Monroe County Dept. of Probation, 136 AD2d 967 [4th Dept. 1988] with Blanche v People, 193 AD2d 991 [3rd Dept. 1993])(McKinney's Practice Commentaries to CPL §390.50 by Peter Preiser). Note, however, that even where a court is of the view that disclosure is permitted for a collateral proceeding, no such relief would be granted without a showing of some important need that cannot be filled by other means (see Campney v People, supra.) [McKinney's Practice Commentaries to CPL §390.50 by Peter Preiser].

There is no constitutional right to a copy of a pre-sentence report (People v Peetz, 4 Misc 3d 597 [Queens County, 2004]. For the court to exercise its discretion, petitioner must make a factual showing of need for a pre-sentence report for use at a parole hearing (see Kilgore v People, 274 AD2d 636 [3rd Dept. 2000] an inmate's bare assertion that he required his pre-sentence report for an appearance before the Board of Parole was insufficient to constitute a proper factual showing of need for the report). If a petitioner makes a factual showing, the court still has the responsibility to protect confidentiality and may order redactions (see People v Peetz, supra.). [*3]

In the case at bar, petitioner has made only a bare assertion that he requires his pre-sentence report for an upcoming parole hearing. Petitioner has not informed the court of the pending date for the parole hearing or why he needs it. The court does not have enough information to determine whether the petitioner is entitled to his pre-sentence report. The court knows there is confidential information in the report but does not have a copy of the report to fully explore its confidentiality. However, the court can presume that petitioner saw the pre-sentence report before his sentence, knows what it says, and should be able to articulate why he needs it. Petitioner's bare assertion that he needs it for an upcoming parole hearing is insufficient.

The petition is, therefore, denied without prejudice.

The foregoing constitutes the decision and order of the court.

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J.S.C.