Crimes - Disclosure - Presentence Investigation Report - Defendant Entitled to Redacted Copy of Presentence Investigation Report to Assist in Preparing Petition to Modify Sex Offender Registration Act Notification Level

William M. Swift for defendant.

John P. Bringewatt, County Attorney (Brendon S. Fleming of counsel), for the People.

{**85 Misc 3d at 918}In 2003, defendant pleaded guilty in Penfield Town Court to sexual misconduct (Penal Law § 130.20), was sentenced to a six year term of probation and was designated a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C). He now seeks an order directing that he be provided with a copy of the presentence investigation report (PSI) prepared in connection with that conviction to assist him in preparing and presenting a petition to modify his notification level. The court concludes that defendant is entitled to a redacted copy of the PSI.

The Sex Offender Registration Act (SORA) requires the sentencing court to determine the level of notification for persons convicted of specified sex offenses. The three levels of notification are based on an assessment of the offender's risk of reoffense and threat posed to public safety.^[FN1] The notification level determines the scope of information available to the public upon registration (People v Watts, 42 NY3d 60 [2024]). An offender can seek modification of their notification level on an annual basis for as long as they remain registered (Correction Law § 168-o; People v Parris, 153 AD3d 68 [2d Dept 2017]; see also Muldoon, Handling a Criminal Case [*2]in New York § 23:104 ["SORA modification proceeding"]).

Defendant's application for release of his PSI requires consideration of Criminal Procedure Law provisions governing the confidentiality of presentence reports and memoranda, and Correction Law provisions governing a SORA petition for relief or modification.

A. Confidentiality of Presentence Reports and Memoranda

The confidentiality of presentence reports and memoranda is governed by CPL 390.50. Under subdivision (1) "any pre-sentence report or memorandum submitted to the court . . . 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 by statute or upon specific authorization of the court."

Defendant urges the court to make the PSI available under the exception permitting disclosure "upon specific authorization{**85 Misc 3d at 919}of the court." The County contends that the exception is not applicable because the PSI was initially prepared for defendant's 2003 sentencing, not the SORA modification proceeding. The County relies on Matter of Salamone v Monroe County Dept. of Probation (136 AD2d 967, 967 [4th Dept 1988]), where the Court held "CPL 390.50 (1) does not authorize disclosure of a presentence report in a collateral proceeding discrete from the proceeding for which the report was initially prepared, even when requested by the attorney for the subject of the report."

The County's reliance on Salamone is misplaced. Salamone does not necessarily preclude release of a PSI in a SORA modification proceeding, or any other collateral matter. Instead, Salamone simply requires that the application for release of the PSI be made to the sentencing court, not the court presiding over the collateral matter. As stated in Matter of People of State of N.Y. v Vasquez (23 Misc 3d 1113[A], 2009 NY Slip Op 50724[U], *2 [Rochester City Ct 2009]):

"CPL 390.50(1) does permit the disclosure of pre-sentence reports for use in collateral proceedings. In reviewing the decision and the record on appeal in Salamone, it is noted that defendant made an ex-parte application to County Court for disclosure of reports prepared for Family Court . . . Rather than announcing a stark departure from the patent statutory authority granted the court to authorize disclosure, the quoted language in Salamone simply asserts that disclosure of the report under CPL 390.50(1) may not be authorized by the court presiding in the collateral matter."^[FN2]

Since the PSI at issue was initially prepared for sentencing in Penfield Town Court, this court has the authority to release the report pursuant to CPL 390.50 (1). To be entitled to disclosure of the PSI under that section, defendant must make "a proper factual showing for the need thereof" (People v Sessoms,{**85 Misc 3d at 920}193 AD3d 1181, 1182 [3d Dept 2021]; Matter of Gutkaiss v People, 49 AD3d 979 [3d Dept 2008]).

B. SORA Modification Proceeding

Defendant contends that his intent to gather information for the preparation and presentation of his petition to this court for modification of his SORA notification level constitutes a proper factual showing of his need for the PSI prepared in connection with his 2003 sentencing for sexual misconduct.

As noted above, an offender required to register pursuant to SORA may petition the sentencing court annually for an order modifying the notification level (Correction Law § 168-o). The offender has the burden of proving the facts supporting the requested modification by clear and convincing evidence (People v Williams, 170 AD3d 1531 [4th Dept 2019]). The relevant inquiry is whether conditions have changed, subsequent to the initial risk level determination, so as to warrant a modification thereof (People v Bentley, 186 AD3d 1135 [4th Dept 2020]; People v Anthony, 171 AD3d 1412 [3d Dept 2019]).

Correction Law § 168-o (4) sets forth the procedures to be followed when a modification petition is filed. Under subdivision (4), the court shall forward a copy of the petition to the New York State Board of Examiners of Sex Offenders (Board) and request an updated recommendation. The offender has a due process right to disclosure of all materials considered by the Board in connection with its recommendation on the modification petition (People v Lashway, 25 NY3d 478, 484 [2015]). The same is true of any materials relied upon by this court—the offender has the right to review materials that were presented to or relied upon by the court in determining the classification level (People v Baxin, 26 NY3d 6 [2015]; see also People v Wells, 138 AD3d 947 [2d Dept 2016]). In short, if the Board or the court considers the PSI, the offender is entitled to a copy.^[FN3]

After receiving the Board's updated recommendation, this court intends to review the PSI before deciding whether the requested modification is warranted. The Court of Appeals recently emphasized that "[o]n a petition for modification . . . , 'the nature of a defendant's crime is a relevant, important factor to be considered by the hearing court' " (People v Shader, 43 NY3d 129, 134 [2024] [citations omitted]). The PSI is, of course,{**85 Misc 3d at 921} a critical source of information regarding the nature of defendant's underlying crime. Reviewing the PSI is especially important in cases such as this, where the sentence was imposed more than 20 years ago and the judge who imposed the sentence is retired. Since this court will consider information contained in the PSI before ruling on the requested modification, defendant is also entitled to review the PSI.

Another ground supports disclosure of the PSI. The Correction Law gives an offender seeking modification of the risk level the right to submit to the court "any relevant materials and evidence" (Correction Law § 168-o [4]).^[FN4] Additionally, the Court of Appeals has recognized that SORA [*4]risk level classification triggers certain due process safeguards, including the right to offer relevant materials in support of the application (People v Watts, 42 NY3d 60 [2024]). It follows that an offender seeking modification of his risk level should have access to the PSI to identify mitigating factors that may support his petition, as well as to anticipate and rebut aggravating factors likely to be raised in opposition to his petition.^[FN5] Defendant's need to review the PSI is particularly acute where, as here, the passage of time between the initial risk level determination and the request for modification is significant, and defense counsel seeking the modification is not the attorney who represented defendant at the time of the initial determination.

For the above stated reasons the court finds that defendant has made a proper factual showing of need for the PSI.{**85 Misc 3d at 922}

Finally, the County Attorney correctly asserts that where a defendant makes a proper factual showing for disclosure of the PSI, the court still has the responsibility to determine whether redaction is appropriate (People v Fishel, 128 AD3d 15 [3d Dept 2015]; Matter of Shader v People, 233 AD2d 717 [3d Dept 1996]).

Accordingly, defendant's request for an order directing the Monroe County Office of Probation to provide a copy of the PSI prepared in connection with defendant's 2003 conviction for sexual misconduct is granted. The PSI should first be made available to the court for in camera inspection to determine whether any portions of the report should be redacted.

" 'disclosure of the report under CPL 390.50(1) may not be authorized by the court presiding in [a] collateral matter. That is in keeping with the case law . . . [requiring] that the CPL 390.50(1) application be made to the sentencing court.' People v. Vasquez, 23 Misc 3d 1113(A) . . . ([Rochester City Ct], Apr. 17, 2009); see also Fishel, 128 AD3d at 19. In other words, under state law, only the court for which the PSI was prepared may authorize the release of the PSI."