S3073-2013 Actions

• Jan 29, 2013: REFERRED TO CODES

S3073-2013 Memo

BILL NUMBER:S3073

TITLE  OF BILL:  An act to amend the criminal procedure law, in relation
to the requirement of preparing pre-sentence reports and the  waiver  of
such  reports  under  certain  circumstances,  and to repeal the closing
paragraph of paragraph (a) of subdivision 4 of section  390.20  of  such
law  relating  to  waiver  of  pre-sentence  reports where indeterminate
sentences are to be imposed

PURPOSE:  The purpose of this bill is to save the State money by  elimi-
nating  the costly requirement of Pre-Sentence Investigations (PSIs) and
related written reports where they serve no useful purpose.

SUMMARY OF PROVISIONS:

Section 1 of the bill amends subdivision 1  of  Criminal  Procedure  Law
("CPL")  section  390.20  to  provide  that  pre-sentence  investigation
("PSI") requirement for persons convicted of a felony  shall  not  apply
when  a  negotiated sentence of imprisonment has been agreed upon by the
parties as the result of a conviction or revocation  of  a  sentence  of
probation, and no sentence of probation will be imposed.

Section  2  amends  subdivision  2  of  CPL section 390.20 to remove the
requirement of a pre-sentence report ("PSR") in the case of a person who
has been convicted of a misdemeanor, even in the circumstances listed in
CPL 390.20(2)(a)-(c).

Section 3 amends CPL section 390.20(4) to provide that where  a  PSI  or
PSR  is  required  by  CPL section 390.20(1), it may be waived by mutual
consent of the parties and the judge if a sentence of probation has been
agreed upon or if such a report has been prepared  during  the  previous
twelve-  month  period.  This section further eliminates the prohibition
against allowing a waiver of a PSI or  PSR  where  an  indeterminate  or
determinate sentence has been imposed, in effect until September 1, 2013
and found in the closing paragraph of CPL section 390.20(4)(a).

Section 4 repeals the provisions of the closing paragraph of CPL section
390.20(4)(a)  that  go  back  into effect on September 1, 2013, with the
result that waiver of the PSI is allowed in the event that an indetermi-
nate sentence is imposed.

EXISTING LAW:  Current law under section 390.20(1) of the CPL requires a
presiding court to order a pre-sentence investigation  of  a  defendant,
and receive a written report thereon, before pronouncing sentence in any
case in which such defendant is convicted of a felony. Where the defend-
ant  has been convicted of a misdemeanor, current law does not require a
pre-sentence report, but there are exceptions to  this  rule  that  this
bill eliminates.

Current law, effective until September 13, 2013, prohibits the waiver of
a pre-sentence investigation of the defendant and a written report ther-

eon  if a determinate or indeterminate sentence of imprisonment is to be
imposed; after September 13, 2013, waiver is not allowed in the case  of
an indeterminate sentence only.

JUSTIFICATION:  The City proposes to eliminate the costly requirement of
Pre-Sentence  Investigations  (PSIs)  and  related written reports where
they would serve no useful purpose. In New York City, there are approxi-
mately 110 probation officers and supervisors  dedicated  to  conducting
such  PSIs,  but in nearly two-thirds of these cases, the defendant does
not end up under the supervision of the Department of Probation (DoP).

Currently, probation  departments  are  required  to  conduct  PSIS  and
prepare  a  written  report on all defendants convicted in felony cases.
The proposed  legislation  would  amend  Criminal  Procedure  Law  (CPL)
section 390.20 to provide an exception to this requirement where a nego-
tiated sentence of imprisonment has been reached as a result of a felony
conviction  or  revocation  of a probation sentence, and where probation
will not be imposed under either scenario. Because the purpose of a  PSI
is to assist the court with sentencing, whenever a sentence of imprison-
ment  has already been agreed upon by plea, a PSI is unnecessary. In the
interest of public  safety,  probation  departments  would  continue  to
prepare  PSIs  in  all  other felony cases, including those where a plea
bargain is reached and the  defendant  is  returning  to  the  community
(i.e.,  probation,  fine,  conditional  discharge). This gives probation
departments an opportunity to provide input to the Court as  to  whether
the sentence is appropriate.

The  bill  would  also  eliminate  the  need for PSIs in all misdemeanor
cases. (Pursuant to existing CPL section 390.20(2) a PSI is not required
in connection with misdemeanor convictions  except  for  probation-bound
defendants,  jail  sentences  greater  than  180  days  and  consecutive
sentences greater than  90  days.)  Instead,  when  a  misdemeanor  case
results  in a probation sentence, DoP will conduct its own investigation
while the person is under its supervision.

It is important to realize  that  the  existing  CPL  section  390.20(3)
allows  judges  to  order  a PSI in any case where it is appropriate and
necessary. This proposal would not affect that discretion to order a PSI
even if the statute would no longer automatically require one.

Accordingly, the Mayor urges the earliest possible  favorable  consider-
ation of this proposal by the Legislature.

LEGISLATIVE HISTORY:  S.5490 of 2011 - Passed Senate 06/18/12

FISCAL IMPLICATIONS: None to the State.

EFFECTIVE  DATE:    This  bill  shall  take effect on the 90th day after
becoming law, with provisions.

S3073-2013 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         3073
 2013-2014 Regular Sessions
 I N  SENATE
 January 29, 2013
 
 Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
 printed to be committed to the Committee on Codes
 

AN ACT to amend the criminal procedure law, in relation to the  require
 ment  of preparing pre-sentence reports and the waiver of such reports
 under certain circumstances, and to repeal the  closing  paragraph  of
 paragraph  (a) of subdivision 4 of section 390.20 of such law relating
 to waiver of pre-sentence reports where indeterminate sentences are to
 be imposed
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section  1.  Subdivision 1 of section 390.20 of the criminal procedure
 law is amended to read as follows:

 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.  THIS REQUIREMENT SHALL NOT APPLY
 WHEN A NEGOTIATED SENTENCE OF IMPRISONMENT HAS BEEN AGREED UPON  BY  THE
 PARTIES  AS  A  RESULT  OF  A  CONVICTION OR REVOCATION OF A SENTENCE OF
 PROBATION, AND NO SENTENCE OF PROBATION WILL BE IMPOSED.
 

S 2. Subdivision 2 of section 390.20 of the criminal procedure law, as
 amended by chapter 413 of the laws of 1991, paragraph (b) as amended  by
 section 179 of the laws of 2010, is amended to read as follows:

 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 subpara-
 graph (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;
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD04364-01-3
 
       S. 3073                             2
 (c)  Consecutive sentences of imprisonment with terms aggregating more
 than ninety days].
 

S 3. Subdivision 4 of section 390.20 of the criminal procedure law, as
 added by chapter 413 of the laws of 1991, the closing paragraph of para
 graph  (a)  as  amended  by chapter 3 of the laws of 1995, is amended to
 read as follows:

 4. Waiver. (a) [Notwithstanding the provisions of subdivision  one  or
 two  of  this  section, a] A pre-sentence investigation of the defendant
 and a written report thereon, WHEN REQUIRED PURSUANT TO SUBDIVISION  ONE
 OF  THIS SECTION, 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)] (II) 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 deter-
 minate sentence of imprisonment is to be imposed].
 (b)  Whenever  a pre-sentence investigation and report has been waived
 pursuant to subparagraph (i)[,] OR (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 4. The closing paragraph  of  paragraph  (a)  of  subdivision  4  of
 section 390.20 of the criminal procedure law, as added by chapter 413 of
 the laws of 1991, is REPEALED.
 

S  5.  This  act shall take effect on the ninetieth day after it shall
 have become a law, provided, however, that the amendments to the closing
 paragraph of paragraph (a) of subdivision 4 of  section  390.20  of  the
 criminal  procedure  law  made  by  section  three  of this act shall be
 subject to the expiration and reversion of such  paragraph  pursuant  to
 subdivision  d  of  section  74  of  chapter  3  of the laws of 1995, as
 amended, when upon such date the provisions of section four of this  act
 shall take effect.

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