Removes the requirement of a pre-sentence investigation when a negotiated sentence of imprisonment has been agreed upon and there will be no sentence of probation imposed.
Ayes (55): Addabbo, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Johnson, Kennedy, Klein, Krueger, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, Oppenheimer, Parker, Peralta, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Storobin, Valesky, Young, Zeldin
Nays (1): Duane
Excused (6): Adams, Alesi, Espaillat, Huntley, O'Mara, Perkins
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
SUMMARY OF PROVISIONS: This bill would amend several provisions of Criminal Procedure Law ("CPL") § 390.20. First, section 1 of the bill would amend subdivision 1 to provide that the requirement that the court order a pre-sentence investigation ("PSI") when a person is 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 proposed. Section 2 of the bill would amend subdivision 2 of CPL § 390.20 to provide that a pre-sentence report ("PSR") would not be required in the case of a person who has been convicted of a misdemeanor.
Subdivision 4 of CPL § 390.20, addressing waiver of a PSR or a PSI, would be amended by section 3 of the bill to provide that where a PSI or PSR is required by CPL § 390.20(1), it can 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. The prescription against allowing waiver of a PSI or PSR where an indeterminate or determinate sentence has been imposed, in effect until September 1, 2011 and found in the closing paragraph of CPL § 390.20(4)(a), would be eliminated. Finally, section 4 of the bill would repeal the provisions of such closing paragraph of CPL § 390.20(4)(a) that go back into effect on September 1, 2011, with the result that waiver of the PSI would be allowed under circumstances where an indeterminate sentence has been imposed.
REASONS FOR SUPPORT: 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 approximately 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 Department of Probation (DOP) supervision.
Currently, probation departments are required to conduct PSIs and a written report on all defendants convicted in felony cases. The proposed legislation would amend Criminal Procedure Law (CPL) § 390.20 to require PSIs for all felony cases, except where a negotiated 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 imprisonment has already been agreed upon by plea, PSIs
are therefore 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 any misdemeanor case. (Pursuant to existing CPL § 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 existing CPL § 390.20(3) allows judges to order a PSI in any case when they believe 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 consideration of this proposal by the Legislature.
STATE OF NEW YORK ________________________________________________________________________ 5490 2011-2012 Regular Sessions IN SENATE May 25, 2011 ___________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;. 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)EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11283-01-1 S. 5490 2
(c) Consecutive sentences of imprisonment with terms aggregating more than ninety days]
[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.