Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 8, #1

Issue: Waiver of Presentence Report

The presentence investigation report is one of the most important documents in the criminal justice process. In addition to directly affecting the sentence to be imposed, a PSI will accompany a defendant sentenced to state prison, thus any errors in it may significantly affect how the defendant is classified upstate.  

Where PSI is mandatory


A PSI is required with a defendant who is eligible to be adjudicated a Youthful Offender. CPL 720.20(1). A PSI is also required where the defendant is convicted of a felony, unless waiver, discussed below, applies. CPL 390.20(1).


Resentencing


Where a defendant is to be resentenced, the court has discretion in whether to order an updated PSI. People v Kuey, 83 NY2d 278 (1994); People v Brinson, 298 AD2d 870, 747 NYS2d 829 (4th Dept 2002).


Discretion to order PSI


The statute provides that a court may order a PSI to be prepared "in any case," regardless of whether it is required. CPL 390.20(3). With a misdemeanor conviction, a PSI is required only with a jail sentence of more than 180 days or on a sentence of probation unless waiver applies.
 

Waiver of PSI


CPL 390.20(4) also allows a PSI to be waived in four situations:


1. Where incarceration is ordered but the sentence is satisfied by "time served."

2. A probation sentence has been agreed upon by the parties and will be imposed.

3. A PSI was prepared within the past year.

4. A probation sentence that was previously imposed will be revoked.


Where a defendant is to receive a determinate or indeterminate term (state imprisonment), a PSI cannot be waived. People v Shapard, 59 AD3d 1054 (4th Dept 2009).

There may be situations where prompt resolution of the court proceeding is needed, or where sufficient probation officers are unavailable to prepare reports without significant delay.

If the PSI is waived, the defendant’s consent should be obtained and placed on the record or in writing. People v Cintron, 191 AD2d 705 (2d Dept 1993) (waiver); People v Eubanks, 8 AD3d 1042 (4th Dept 2004) (no waiver).

© 2012 by Gary Muldoon