Opinion
2004-123.
Decided November 29, 2004.
Anna Guardino, Esq., Assistant District Attorney for plaintiff; Randel A. Scharf, Esq., of Cooperstown, NY for the defendant.
This matter is before the Court on the objections by defense counsel to portions of the pre-sentence investigation report.
Counsel has placed his objections on the record and in writing concerning the following two passages contained in the evaluative analysis:
"At his pre-sentence investigation interview he recanted his disclosures and advised this Officer he would be retaining another lawyer, dissatisfied with an out of town attorney his mother retained for him. This attorney had apparently been highly recommended by a neighboring inmate while the Defendant was housed at the Southport Correctional Facility. As of August 24, 2004, the date of his PSI interview, the Defendant stated he was going to meet with a new attorney the next day, one that his father had retained for approximately $10,000.00. He felt he should not discuss this matter with this Officer prior to being advised by his attorney."
"The defendant is a sociopath pure and simple, whose sense of entitlement has rendered him incapable of respecting others' rights or belongings."
Sentencing was originally scheduled for September 27, 2004. Based upon counsel's objections to the pre-sentence report, and after considering the issue, this Court wrote to Probation Supervisor Bruner on September 30, 2004. In the letter (a copy of which is attached hereto), the Court stated as follows:
"Much of the material contained in the first noted paragraph is not material to the issues before the court on sentencing. The statement that the defendant recanted his disclosures and advised the Officer that he would be retaining another attorney is relevant and should be retained. Further, the defendant's indication that he should not discuss the matter without being advised by his attorney is relevant and acceptable. The other material should be deleted.
The reference to the Officer's conclusion that the defendant is a sociopath is stricken, as there is no indication that she is qualified to make such a determination or that the determination is supported by someone who is so qualified. The Officer is entitled to state the facts which led her to her conclusion, without then stating the conclusion.
Sentencing has been adjourned to October 25, 2004. I direct that the pre sentence report be amended, as indicated above and returned to the Court before that date."
Also contained in the letter was an invitation for the Probation Officer to state supported facts, without reaching the ultimate diagnosis.
In a reply letter dated October 1, 2004, (a copy of which is attached hereto) Probation Supervisor Bruner stated, "I respectfully decline to change the contents of the previously prepared Pre-Sentence Investigation."
The matter was then scheduled for a pre-sentence conference on October 25, 2004. Present for the conference with the Court were Assistant District Attorney Guardino, Defense Counsel Scharf, Probation Supervisor Bruner and Probation Officer Calderon-Clark.
Defense counsel argued that the pre-sentence report would follow the defendant into the system and would be used for such purposes as classification, programming, early release and parole. He argued that the material in the first section was not relevant to sentencing. He further argued that the Probation Officer was not qualified to diagnose someone as being a sociopath. After the Court indicated that it would not consider the material, counsel objected that such remedy was insufficient, since the report would stand alone, without officials reading the sentencing minutes.
The Probation Department took the position that the contents of the report were their own and that the Court had no authority to direct the deletion of any material. Further, the department argued that the term sociopath was commonly used and understood and that the Officer had utilized the word in accord with that generally understood meaning. Finally, the opinion was expressed that a line by line review and editing of the report by the Court would interfere with the operation of the criminal justice system.
The People expressed no opinion on the issues at the conference.
There was a discussion at the conference regarding the meaning of the term "sociopath," with reference made to the dictionary, Taber's Medical Dictionary and the internet.
The Court believes that the parties were given a full and fair opportunity to express their positions and to "flesh out the issues" at the pre-sentence conference.
Following the conference, defense counsel once again placed his objections in writing to the concept of striking the material from the Court's consideration but not physically striking the material from the report. Counsel argues that Section 390.50 provides the Court with the authority to order that the material be physically stricken from the report.
Section 390.50, Subdivision 2 of the Criminal Procedure Law reads as follows:
"Pre-sentence report; disclosure, victim access to statements; general principles. (a) Not less than one court day prior to sentencing . . . the pre-sentence report or memorandum shall be made available by the court for examination and for copying by the defendant's attorney, the defendant himself, if he has no attorney, and the prosecutor. In its discretion, the court may except from disclosure a part or parts of the report or memorandum which are not relevant to a proper sentence, or a diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which have been obtained on a promise of confidentiality, or any other portion thereof, disclosure of which would not be in the interest of justice. In all cases where a part or parts of the report or memorandum are not disclosed, the court shall state for the record that a part or parts of the report or memoranda have been excepted and the reasons for its action. The action of the court excepting information from disclosure shall be subject to appellate review . . ."
After reading the statute, the Court is unsure whether the reference to exception from disclosure is a general reference or whether it relates back to disclosure to the parties. The previous sentence, after all, is discussing the release of the report to the parties prior to sentencing. The legislative history of the statute has been examined. While it gives no definitive answer, the bulk of the material deals with the release of the material to the parties.
There is very little case law on the issue, as we are sure such issues are normally resolved without resort to a decision and order by a court. Further, we would note that this defendant remains incarcerated in the Chemung County Jail pending sentence. When the county is so concerned about the jail population, it is unfortunate that this matter has not been amicably resolved and the defendant transferred to state custody.
We note that this case involves a bargained for sentence of two to four years in state prison. Whether the information remains in the pre-sentence report or is stricken, the sentencing bargain will be honored.
The Court believes that all parties have been afforded an opportunity to place their positions before the Court. Neither the People nor the Defense have requested a formal hearing and have both requested that the Court base its decision upon the information received at the pre-sentence conference. No formal recorded hearing is required by Section 400.10 of the Criminal Procedure Law.
Counsel's Duty to Challenge Incorrect or Misleading PSI Contents:
In " Sentencing Tips for New York Lawyers" by Alan Rosenthal, Esq., Justice Strategies, A Research, Training and Policy Initiative of the Center for Community Alternatives, the author states that counsel should obtain a copy of the pre sentence report, review the same carefully with his client and address any inaccuracies. "Any inaccuracies and misinformation can be addressed in a defense pre-sentence memorandum and/or at the time of sentencing." Id. At page 2.
"National standards for defense counsel mandate that attorneys review the pre-sentence report, ensure that clients have an opportunity to examine the pre-sentence report, and protect clients' interests concerning the content of the pre-sentence report. See, National Legal Aid and Defender Association (NLADA), Performance Guidelines for Criminal Defense Representation, Guidelines 8.3(4); 8.4 [defense counsel should `take appropriate steps to ensure that erroneous or misleading information which may harm the client is deleted from the report' (Guideline 8.4[4]). See also ABA, Standards for Criminal Justice, Prosecution and Defense Function (3rd Ed.), Standard 4-8.1(b) [defense counsel should seek to verify information in the pre-sentence report when it is made available and be prepared to supplement or challenge information if necessary.]
Lawyers should not hesitate to ask the Court to make corrections on the face of the probation report and/or to have the report sent back to the Probation Department for correction of all errors. See e.g., Cohen and Neely, eds., Supreme Court of the State of New York Appellate Division, First Department, Criminal Trial Advocacy (7th ed. 19920 p. 724 ['If successful in efforts to correct report, ask court for direction to Probation to retype report and for revised version only to be sent to Corrections.'] This is important because the report's function does not end with the Court's use of it at the time of sentencing. A copy of the report is required to be delivered to the person in charge of the correctional or division for youth facility to which the defendant is committed whenever a person is sentenced to a term of imprisonment and will be used in decision-making regarding the client by the Department of Correctional Services (DOCS), Division for Youth, or Office of Mental Health. See CPL 390.60(1)." Id.
In Muldoon Feurstein, Handling a Criminal Case in New York, Section 21:174, the author states as follows:
"If the investigation report contains incorrect information, counsel should object at sentencing to the inclusion of the erroneous information and move to strike it. People v. Nenni, 70 AD2d 774, 417 NYS2d 347 (4th Dep't 1979); People v. Rampersaud, 144 Misc2d 126, 543 NYS2d 640 (Sup 1989); c.f. People v. Thomas, 2 AD3d 982, 768 NYS2d 519 (3rd Dep't 2003), leave to appeal denied, 1 N.Y.3d 602, 776 NYS2d 233, 808 NE2d 369 (2004). The court may conduct a conference or a summary hearing to resolve discrepancies in sentencing information. CPL 400.10(1)(3)."Case Law:
The Court's authority to order material physically stricken from the PSI is contained in People v. Ramperaud, 144 Misc2d 126 (Supreme Court, Bronx County, Bamberger, J., 1989). The probation officer in that case concluded in her report, "(b)ecause of her willingness to use extreme measures which had possible fatal consequences to the complainant, it is now questionable if defendant can refrain from extreme violence in the future whenever she feels she is sufficiently provoked." Id. At 127. The court found the conclusion to be unsupported by the remainder of the report.
Judge Bamberger provided several examples concerning the reliability of evidence. She then stated, "(t)his last example, the necessary justification for an expert's opinion, provides an analogy for the court's evaluation of the probation officer's inference. Here, there is no evidence to support the probation officer's conclusion and it should not be used for sentencing and correctional decisions. Due process requires that sentencing decisions be based on reliable fact finding, just as decisions to determine guilt. ( Townsend v. Burke, 334 US 736 [1948]; United States v. Pugliese, 805 F2d 1117, 1124 [2d Cir 1986].) The period of custody and the conditions of custody and probation have such a severe impact on the individual that they must be determined based on reliable information and the reliable inferences drawn therefrom. ( See, Morrissey v. Brewer, 408 US 471, 484 [1972].)
This court concluded that the above-quoted portion of the report should not be used for sentence, and now further concludes that it should not be available for corrections purposes. It will prejudice the defendant in her periods of custody and in the future while on probation. Accordingly the requested relief is granted and the Probation Department and the Department of Correction are directed to advise the court in writing that they have physically deleted the paragraph from the report." Id. At 128-129.
People v. Thomas, 2 AD3d 982 (3rd Dept., 2003) was a case from my court. In that case, this Court determined that certain material in the PSI would not be considered by me, but declined to order the material physically deleted from the report. The defendant argued on appeal that the report should have physically been redacted. The Third Department disagreed, stating, "we see no basis for physical redaction of the report." Id. At 984. Based upon the Appellate Division's comments concerning the exercise of discretion by the trial court, this Court believes the present case to be distinguishable. Discretion must be exercised based upon the facts of the particular case and the requirements of justice. In Thomas this Court fashioned a remedy which was believed to be appropriate. The Court does not believe that remedy to be appropriate in this case. Frankly, the Court has made efforts to fashion a remedy short of this decision and order, but these attempts have been rejected.
FINDINGS:
The Court finds that statements contained in the first paragraph to which counsel objects are not relevant to sentencing. Specifically, his dissatisfaction with his attorney, the way that he found the attorney and the cost of the attorney being retained by his father are not material to sentencing.
The conclusion by Probation Officer Calderon-Clark that the defendant is a sociopath pure and simple is improper. There is no showing that the probation officer is qualified to make such a determination or that the conclusion was based upon the report of a qualified individual.
The Court disagrees with the conclusion that the term sociopath is a generally used and understood term. We believe it is a professional term and that such a diagnosis should be left to qualified professionals.
Merriam-Webster's Online Dictionary defines sociopath to have the same meaning as psychopath. Webster's New Twentieth Century Dictionary of the English Language, Unabridged, Second Edition (1979) defines sociopath as, "a psychopathic personality whose behavior is aggressively antisocial." The language "aggressively antisocial" certainly has the connotation of violence. There is no violence in the defendant's legal history. His present crime is Forgery in the second degree.
The Court has consulted with an official from the Department of Correctional Services, who has advised that the label of "sociopath" in the pre sentence report will not be good for the defendant and will adversely affect his classification, programming and potential for an early parole release.
"The purpose of a presentence investigation `is to provide the Court with the best available information upon which to render an individualized sentence' ( People v. Perry, 36 NY2d 114, 120)." People v. Thomas, 2 AD3d 982, 984 (3rd Dept., 2003).
The report is prepared as an aid to the Court, to the Department of Corrections and to the Division of Parole. It travels with the commitment to prison. In that sense, it becomes a part and parcel of the Court's sentence, and it should be accurate and correct. It should be relevant and factual. It should not be based upon conjecture, speculation, unsubstantiated opinion or gossip. The improper nature of the material has been brought to the attention of the Probation Department and they have declined to alter the report. Due process demands that the defendant not be prejudiced by the unwillingness of the Probation Department to alter its position. The Court is unsatisfied with the basis for the material as supplied by the Probation Department. The argument that the reference to the availability to the defendant of the $10,000 is relevant to the ability of the defendant to pay restitution is unsupported by the PSI, which makes reference to that money as belonging to the defendant's parent or parents. They cannot be compelled to pay his restitution. Above and beyond the requirements of due process, the Court refuses to have this material associated with its sentence. The material, particularly the designation of the defendant as a sociopath, is improper and unsupported. The material is improper for consideration regarding sentencing and it is improper for consideration on correctional and/or parole purposes.
Had the presentence report outlined the defendant's criminal history or made some comment supported by that record and not requiring a professional diagnosis beyond the qualifications of the officer, that material would have been acceptable.
The bottom line in this matter is that the label sociopath, placed on the defendant by the Probation Officer will prejudice him, the Probation Officer is unqualified to make such a diagnosis, there has been no showing of a proper foundation for that diagnosis or label and the material should be physically removed from the presentence report. To the extent that the Probation Department has unjustifiably refused to remove the material, I will order its removal.
ORDER:
Having afforded the parties a full opportunity to express their positions, the Court hereby Orders as follows:
Probation Officer Calderon-Clark is ORDERED to cause her evaluative analysis to be retyped and to delete the following material:
1) "____, dissatisfied with an out of town attorney his mother retained for him. This attorney had apparently been highly recommended by a neighboring inmate while Defendant was housed at the Southport Correctional Facility."
2) "____, one that his father had retained for approximately $10,000.00."
3) "The Defendant is a sociopath pure and simple, whose sense of entitlement has rendered him incapable of respecting others' rights or belongings."
It is further ORDERED, Probation Officer Calderon-Clark is to advise the Court in writing that the report has been retyped and the material ordered has been physically redacted, providing the Court with a copy of the retyped version, and
It is further ORDERED, that the original evaluative analysis is not to be released or provided to anyone, including, but not limited to, the Department of Correctional Services or Division of Parole, without prior written permission from this Court.
This constitutes the decision, opinion and order of the Court.