Shader v. People

Nov 21, 1996
Versions:233 A.D.2d 717
650 N.Y.S.2d 350
1996 N.Y. App. Div. LEXIS 12067

Crew III, J. Appeal from an order of the County Court of Albany County (Breslin, J.), entered September 5, 1995, which denied petitioner’s application pursuant to CPL 390.50 for a copy of his presentence report.

In 1995, petitioner’s application for parole release was denied by the State Board of Parole. Petitioner filed a notice of appeal from said determination with the State Division of Parole and thereafter made a motion in Albany County Court, pursuant to CPL 390.50, to obtain a copy of his presentence report for use in connection with that appeal. County Court denied the motion and petitioner appeals.

We reverse. In Matter of Blanche v People (193 AD2d 991), we recognized that CPL 390.50 (1) permits disclosure of a presentence report in collateral proceedings upon a proper factual showing for the need thereof. Contrary to the conclusion reached by County Court, we are of the view that petitioner made such a showing inasmuch as a presentence report is one of the factors required to be considered by the Board of Parole upon application for release (see, Executive Law § 259-i [1] [a]; [2] [c]).

We disagree, however, with petitioner’s assertion that he is automatically entitled to an unredacted copy of his presentence report. It has been consistently recognized that such reports consist of confidential material, which may be appropriately withheld from disclosure (see, People v Perry, 36 NY2d 114; Holmes v State of New York, 140 AD2d 854; cf., CPL 390.50 [2] [a]). Accordingly, upon remittal, County Court is directed to review petitioner’s presentence report in camera to determine what portion, if any, should be redacted, except such portion from disclosure and set forth the reasons for its action (see, People v Butler, 54 AD2d 56, 60-61).

Mikoll, J. P., White, Casey and Yesawich Jr., JJ., concur.

*718Ordered that the order is reversed, on the law, without costs, and matter remitted to the County Court of Albany County for further proceedings not inconsistent with this Court’s decision.