N.Y. Comp. Codes R. & Regs. tit. 9 § 350.6

Current through Register Vol. 46, No. 19, May 8, 2024

Section 350.6 - Investigation process for criminal, juvenile delinquency, persons in need of supervision, and family offense proceedings

(a) Order for Investigation and Report. The court order for investigation and report shall include, at a minimum, the same information and attachments, as applicable. The receipt of a court order for an investigation and report shall be entered in either a paper or electronic departmental case record management system which shall include but not be limited to the date received, the name of the person subject to the investigation, the date of birth, the final conviction charge/finding, disposition/sentencing date, and the name of the person assigned to conduct the investigation and prepare the report. In the case of fingerprint- able offenses (juvenile and adult), the Criminal Justice Tracking Number (CJTN) and NYSID shall also be recorded to positively identify the subject of the investigation and obtain a complete criminal history.

(b) Scope of Investigation Process. The investigation process shall consist of the gathering of all information required for inclusion in the pre-dispositional/pre-plea/pre-sentence investigation report and as deemed relevant by the probation department conducting the investigation that may have a bearing upon the recommendation or court disposition/sentencing, as well as any additional information directed by the court

(1) Legal history: the investigation shall consist of the gathering of available, relevant and reliable information from New York and multi-state criminal history records and other official records relative to: arrests; previous conduct and complaints; convictions; adjudications; youthful offender eligibility; prior designated felony act offenses; predicate felony status; persistent felony offender; DNA and/or sex offender registration eligibility; dispositions; sentences; any period of time respondent/defendant served in a placement/correctional facility; information relevant to probation, parole, violation of probation or parole proceedings; warrants; order(s) of protection; and any prior deportation(s). For all investigations, the officer shall not gather information as to matters which have been terminated in favor of the respondent/defendant pursuant to Criminal Procedure Law, section 160.50 and Family Court Act, section 375.1. When conducting an investigation upon an adult after conviction, JD and PINS intake diversion records may be gathered, unless such records have been sealed pursuant to Family Court Act, section 375.1. The officer may, however, gather independent legal information voluntarily received from other sources (such as the respondent/defendant, family members, victims, schools or police) as to past behavior.

(2) Social circumstances: the investigation shall consist of the gathering of available, relevant and reliable information regarding past and present social circumstances, including:

(i)

(i)

(a) any systems involvement with the respondent/defendant's family that may be relevant (i.e., local department of social services, police, probation, Federal immigration);

(b) the family and home situation;

(c) citizenship and, if applicable, alien status;

(d) financial and family support obligations, including history of meeting those obligations;

(e) community and neighborhood environment;

(f) peer/associate relationships, including any gang involvement;

(g) educational status and vocational skills;

(h) employment and military experience;

(i) any violent behavior in the home or community;

(j) access to weapons, ownership, and any licenses related to such weapons;

(k) all other social circumstances that constitute criminogenic risk, needs, and protective factors; and

(l) all significant patterns of which the court should be aware, such as assaultive behavior, chemical dependency, domestic violence, driving offenses, endangering or other reckless behavior, mental health concerns or sexual offending.

(ii) For juvenile cases the investigation shall also include the gathering of available, relevant and reliable information regarding any:

(a) history of running away;

(b) child neglect/abuse;

(c) appropriate use of parental authority and attitudes toward the child and their behavior;

(d) consistency and appropriateness of caring, rewards, discipline, and supervision in the home;

(e) positive adult relationships and social support networks;

(f) significant family conflict, or safety concerns affecting either the respondent or other persons in the home (i.e., violence or abuse);

(g) school adjustment, academic performance and conduct/special needs;

(h) previous social assistance provided by voluntary or public agencies and the response of the youth to such assistance;

(i) any detention or other residential placement history, and the youth's adjustment to such placement.

(iii) Where an out-of-home placement of a juvenile is being considered, the probation department shall consult with social services, as appropriate, and where feasible shall address:

(a) whether continuation in the respondent's home is contrary to the best interest of the respondent;

(b) whether efforts were made prior to the date of the dispositional hearing to prevent or eliminate the need for removal of the respondent from his or her home; and

(c) whether there is a placement offer within proximity to the respondent's family, school, and community.

(3) Victim information: the investigation shall consist of the gathering of relevant and reliable information related to the victim(s) of the offense/act as such terms are defined in section 350.1 of this Part. Where available, victim information shall address:

(i) each victim's age at the time of the offense, gender, any special needs or disabling conditions, and relationship to the offender;

(ii) all pertinent information relative to each victim's version of the offense/act; the victim impact statement(s), including physical, psychological, or economic injuries, damages, and out-of-pocket losses sustained;

(iii) any violence or threatening behavior, or other safety concerns related to the victim(s) or the victim(s)' family;

(iv) any order of protection that has been issued against the respondent/defendant;

(v) any restitution or reparation sought;

(vi) any reimbursement received or anticipated by the victim(s), whether from the Office of Victims Services, or the victim(s)' insurance;

(vii) the victim's view toward disposition/sentence;

(viii) and all other relevant and reliable information of which the court should be aware, and may include, where appropriate, information as to other individuals who may have been victimized by the respondent/defendant.

(c) Conducting the investigation.

(1) Obtaining basic legal information. The following basic legal information and documents shall be obtained, where available, as part of the investigation. Where the respondent/defendant has been fingerprinted, a multi-state criminal history search shall be conducted. Whenever possible, any such documents shall be obtained prior to the interview with the respondent/defendant.

(i) Legal history: respondent/defendant's legal history as indicated in paragraph (b)(1) of this section shall be included when relevant to the recommendation or court disposition/ sentence.

(ii) Probation and Parole History: relevant legal history information related to prior contact(s) with the courts, probation and parole, detention, pretrial release, and supervision concerning the respondent's/ defendant's previous and present compliance with diversion/supervision plans and conditions, and participation in voluntary assessment and case planning services

(iii) Placement and institutional history: information from institutional officials concerning the respondent's/defendant's previous and present adjustment in residential/incarceration settings.

(iv) Current offense/act: information: the original charge/petition allegation, plea and conviction/adjudication; any current orders of protection; the date and nature of the offense; the arresting officer and any petitioner's statement; victim statement(s), including domestic incident reports (DIRs); any witness statements; the respondent's/defendant's written statement at the time of arrest; and the status of co-respondent/co-defendant cases and all other pertinent information.

(2) Interviews with Respondent/Defendant, or Subject(s) of the Court Order for Investigation. Following the receipt of a court order, an in-person interview shall be held with the respondent/defendant, or subject(s) of the court order for investigation. All in-person interviews shall be directed toward obtaining and clarifying relevant information and making observations of the respondent/defendant's behavior, attitudes and character. During or prior to the in-person interview, probation personnel shall obtain the appropriate consent(s) for release of information and shall gather relevant information identified by and available through such consent for release. In cases where the defendant is in the custody of DOCCS and is not accessible for an in-person interview with the probation department, the Institutional Probation Investigation Interview and Protocols executed by the Division of Criminal Justice Services and DOCCS shall be followed. On a case-by-case basis, where the respondent/defendant resides in a distant jurisdiction and exigent circumstances exist, as determined by the probation director, an interview may be substituted for an in- person interview.

(3) Other interviews/contacts.

(i) Where the subject of the investigation is a juvenile, the probation officer shall conduct an interview with the parent(s)/guardian(s). Where appropriate for criminal court cases involving an individual younger than 19 years of age at the time of the offense, the probation officer shall attempt to contact and interview the parent(s)/guardian(s)/custodial authority. The purpose of this interview is to gather information from the parent(s)/guardian(s)/custodial authority regarding their perspective of the following:

(a) child and family background, important life events, and hardships;

(b) medical and psychological concerns or disabilities, including any trauma, treatment, counseling, and suicidal history;

(c) school history, including achievements or problems;

(d) home environment, including family relationships and any conflicts, behavior and discipline issues, and positive or negative neighborhood influences;

(e) their ability and willingness to provide appropriate supervision, including any problems that the parent is experiencing;

(f) identification of other supportive adults who are available to assist;

(g) the most appropriate disposition and the impacts of such disposition on the child and family;

(h) any other relevant information that may impact the court's decisionmaking; and

(i) where probation supervision is being considered, how they will assist in meeting the identified goals of the supervision plan.

(ii) Except as provided for under subparagraph (i) of this paragraph, interviews with the complainant, arresting police officer, family members and/or other persons or agencies shall be made when deemed necessary for obtaining additional and clarifying information, which is likely to influence the recommendation or court disposition/treatment.

(iii) Where the offense/act includes one or more victims, as such terms are defined in section 350.1 of this Part, probation personnel shall communicate with each victim, and inform the victim(s) of their right to seek restitution or reparation, and attempt to secure the victim impact statement(s). The probation department may seek to communicate with a victim's advocate or victim service provider to gather additional victim information. In cases:

(a) where a victim is a minor or is otherwise unable to assist; or

(b) resulting in death or serious injury, the investigation shall include gathering of information from family member(s), guardian(s), or significant other(s).

(iv) Where a source requests "confidentiality", the probation officer shall explain that a request can be made to the court to except information from disclosure, but that the court may disclose any or all parts of the report.

(4) Types of assessment.

(i) Risk and needs assessment. The investigating officer shall assess the respondent's/defendant's risk of recidivism, criminogenic need areas, and protective factors (assets/strengths) related to legal history, family and environment, education and employment, physical and mental health, attitudes and cognitive skills.

(ii) Financial assessment. Where restitution is sought and probation or conditional discharge is being considered, the investigating officer shall assess the respondent's/defendant's ability to pay restitution. The financial assessment shall also consider any other financial obligation as that term is defined under section 353.1(a) of this Part. This assessment may include gathering information regarding personal expenses, lifestyle, and discretionary spending. It may specify assets and liabilities, such as: income from employment, other income (e.g., veteran's benefits, interest/dividends, supplemental security insurance, rentals, pension, alimony, etc.), residence (mortgage amount, rent amount, owned outright), vehicles owned (year, model, value), other assets (description, value) (e.g., bank accounts, stocks, bonds, real estate), major credit cards (maximum credit, unused credit), debts (e.g., credit card balances, judgments, loans, etc.).

(iii) Community and institutional resource assessment. The investigating probation officer shall consider the availability of appropriate community and institutional supervision and treatment resources to address the specific risks and needs that must be targeted to reduce the risk of re-offending.

(5) Verification.

(i) Every reasonable effort shall be made to verify the following:

(a) date of birth;

(b) place of birth;

(c) citizenship;

(d) alien status of respondent/defendant (if foreign-born); where verification of alien status has not been achieved, the steps taken to verify shall be noted in the narrative section of the report;

(e) current address, and where applicable in the case of current detention, homelessness, or residence change, the intended address;

(f) legal history;

(g) present offense; and

(h) any victim's damages/out of pocket financial loss/injuries sustained;

(i) any matter which the court directs to be included.

(ii) In addition to the above, the following shall also be verified when likely to have a bearing on the recommendation or court disposition/treatment:

(a) living arrangements, including the names of members of the household, and their relationship to the respondent/defendant;

(b) mental and physical health;

(c) treatment providers;

(d) military service;

(e) current educational level and status;

(f) current employment and salary; and

(g) any other factor deemed relevant by the investigating probation officer.

(d) Preservation of investigation materials. The investigating probation officer shall document the method(s), source(s), and date(s) of receipt of information. Information obtained, including copies of verification documents shall be retained in the official case record.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 350.6

Amended New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019