Pre-sentence Reports in New York
The purpose of a pre-sentence report is to assist the court in determining an appropriate sentence for a person convicted of a crime. It is prepared by the probation department between the time the defendant is convicted and the time the defendant is sentenced.
A pre-sentence investigation and report –unless waived- is required in any case where a person has been convicted of a felony. [CPL § 390.20(1)] A pre-sentence investigation and report is also required-unless waived- where a person is convicted of a misdemeanor and the defendant is to be sentenced to more than ninety days in jail; to consecutive sentences totaling more than ninety days in jail; or to a term of probation. [CPL § 390.20(2)] A judge is not required but may order a pre-sentence investigation and report in any other cases. [CPL§390.20(3)]
A presentence report can be waived by the parties and the court where: the sentence is agreed to by the parties and will equal time served; a sentence a probation has been agreed on by the parties and will be imposed; a pre-sentence report has already been done within the last twelve months; or a sentence of probation has been revoked. [CPL § 390.20(4)(a)(i-iv)] A pre-sentence report cannot be waived if a prison sentence is to be imposed. [CPL §390.20390.20(a)] A court may require a victim impact statement even if the presentence investigation and report is waived. [CPL§320.20(4)(b)]
The presentence investigation and report includes gathering and reporting on: the facts and circumstances of the crime; the defendant’s criminal history, the defendant’s social history, the defendant’s employment history, the defendant’s family situation, the defendant’s economic status; the defendant’s educational background, the defendant’s personal habits; any matter the investigating agency deems relevant to sentencing and any other information requested by the court. [CPL §390.30( 1)] Defense counsel can and generally should submit his own pre-sentence memorandum addressing these same topics and may attach statements of others in support of the facts in his memorandum. [CPL § 390.40(1)]
The investigation and report must also include any available information concerning the defendant’s physical and mental condition. [CPL § 390.30(2)The court may order a person undergo a comprehensive physical or mental examination at a designated facility if: the person is convicted of a felony; the person is convicted of a class A misdemeanor; or the person convicted of a crime is under twenty- one years old.[CPL § 390.30(2)]
The presentence investigation report also must include a victim impact statement unless a determination is made that such a report would not be relevant to the agency’s sentencing recommendation or the court’s determination. [CPL§390.30(3)(b)] A victim impact statement is required to include the victim’s version of the crime; a statement of the victim’s injuries; a statement of the victim’s economic loss; a statement of the victim’s out of pocket expenses; and the victim’s views on sentencing including the amount of restitution and reparation sought by the victim. [CPL§390.30(3)(b)] The information may be obtained from the victim’s family if the victim is unavailable to provide it. [CPL§390.30(3)(b)]
An abbreviated or short form presentence report may be used if the defendant is convicted of a misdemeanor. [CPL§390.30(4)]An abbreviated or short form report must still include: the extent of the victim’s injuries; the victim’s economic loss; the victim’s actual out of pocket loss; the amount of restitution or reparation sought by the victim and any information requested by the court relevant to sentencing. [CPL§390.30(4)]
The presentence report must be disclosed to the prosecutor and defense counsel for review and copying at least one day before sentencing. [CPL §390.50(2)] The head of any correctional facility to which the defendant is imprisoned will also receive a copy of the pre-sentence report. [CPL §390.60(1)]The court may redact from the report: information not relevant to sentencing; diagnostic opinions that may seriously disrupt a rehabilitation program; information obtained in exchange for a promise of confidentiality; or information that should not be disclosed in the interest of justice. [CPL §390.50(2)]
Please call me toll free at 1-877-858-2889 if you have been charged with a crime. I am available 24/7. The initial consultation is free. If the case is not dismissed, I will negotiate a plea bargain acceptable to you or take the case to trial.
