Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 6, #4©

Issue: Defense Counsel’s Role in Presentence Investigation

After a defendant pleads guilty or is found guilty after a trial, the judge may order a presentence investigation. The defendant is notified to meet with a probation officer; if the defendant is incarcerated, the interview occurs in jail.

The accuracy of the written report that goes to the judge can be of central importance to a defendant: in addition to affecting the sentence that is imposed, where a defendant is sentenced to state prison, the PSI will be sent there as well. The Court of Appeals has noted that the presentence report “ . . . may well be ‘the single most important document at both the sentencing and correctional levels of the criminal process.’” People v Hicks, 98 NY2d 185, 189, 746 NYS2d 441 (2002).

What should be the role of defense counsel at this interview? That has changed in recent years.

Federal system

Under the federal rules, upon request, the probation officer must give defense counsel notice and a reasonable opportunity to attend the interview. Fed R Crim Proc 32(c)(2).

State cases

In the state court system, the approach appears to vary among the counties.

According to one lower court decision, the presentence investigation interview is not a “critical stage” of a criminal proceeding. People v Bogart, 148 Misc2d 327, 560 NYS2d 266 (Sup Ct 1990). Though not a critical stage, it may be important for defense counsel to attend. Handling a Criminal Case in New York, §§ 2:4, 21:168.

With a low-level crime or where there is a sentence promise, there is less of a need for defense counsel to be present.

Counsel may have a greater need to attend in situations such as a felony conviction, a conviction after trial, where there has been no sentence promise, or where the defendant is young, inarticulate, or has special needs.

Where the defendant has not testified at trial, or maintains his innocence, it may be appropriate for the defendant and defense counsel to provide a written statement of the defendant’s version of the events in question, to reduce the possibility of misinterpretation. Alternatively, defense counsel may inform the probation department that the defendant will not speak about the matter.

In People v Hicks, 98 NY2d 185, 746 NYS2d 441 (2002), the Court of Appeals held that discrepancies between what a defendant told the judge at the time of plea, and what was stated later to the probation officer, could be used to vacate the sentence promise.

The probation department interview is not a situation where Miranda warnings are required. People v Cortijo, 179 Misc2d 178, 684 NYS2d 435 (Sup Ct 1998). As to matters in the defendant’s history that may be incriminating, it may be appropriate for defense counsel to advise the defendant to not discuss these.

The right against self incrimination for a defendant continues for those who have pled guilty, but are not yet been sentenced. An adverse inference may not be drawn from the defendant’s silence. Mitchell v US, 526 US 314, 119 S Ct 1307, 143 L Ed 2d 424 (1999).


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