| People v Freeman |
| 2009 NY Slip Op 08520 [67 AD3d 1202] |
| November 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GermaineFreeman, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Columbia County (Nichols, J.),rendered January 8, 2008, convicting defendant upon his plea of guilty of the crime of rape in thethird degree.
After defendant pleaded guilty to rape in the third degree, County Court imposed theagreed-upon sentence of 1 to 3 years in prison. Defendant does not challenge the judgment ofconviction. Rather, his appeal focuses on the court's determination not to redact certaininformation from the presentence investigation report (hereinafter PSI).
The information should have been redacted because the PSI contained clearly erroneousinformation and was inconsistent with statutory procedures. The probation officer who authoredthe PSI completed and attached a risk assessment instrument on the form contemplated under theSex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]). Thispresented several problems. The risk assessment instrument is not legislatively intended to beconsidered at sentencing where incarceration will be imposed, rendering presentation of the formpremature (see Correction Law § 168-n [3]). Second, under SORA the ProbationDepartment is not the proper agency to complete a risk assessment instrument (seeCorrection Law § 168-n [2], [3] [requiring recommendation from Board of Examiners ofSex Offenders]; cf. Correction Law § 168-d [3] [requiring district attorney to filewritten statement of determinations sought]). Third, [*2]CountyCourt noted that the form contained serious errors. The court pointed out each error and recitedthe correct information under each such category for the record, but declined defense counsel'srequest to redact the entire form from the PSI.
Failing to redact erroneous information from the PSI created an unjustifiable risk of futureadverse effects to defendant in other contexts, including appearances before the Board of Paroleor other agencies. If the sentencing minutes are inadvertently separated from the PSI (seeCPL 380.70, 390.60), or an agency relies on the unedited original version at the ProbationDepartment (see CPL 390.30), defendant will have to not only refute the information inthe PSI but also explain why the sentencing court apparently did not correct the PSI. Aninaccurate PSI could keep a defendant incarcerated for a longer duration of time, affect futuredeterminations of his or her legal status in court, as well as affect other rights regulated by thestate. These risks are enough to justify redaction. Accordingly, we now order that the riskassessment instrument be redacted from all copies of defendant's PSI.
Peters, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed, and the County Court of Columbia County is directed to redact the risk assessmentinstrument from all copies of defendant's presentence investigation report.