| People v Rudduck |
| 2011 NY Slip Op 04840 [85 AD3d 1557] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JohnC. Rudduck, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), renderedFebruary 17, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal sexualact in the first degree and predatory sexual assault against a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal sexual act in the first degree (Penal Law § 130.50 [3]) and predatory sexualassault against a child (§ 130.96). His sole contention on appeal is that County Court erredin denying his motion to redact erroneous information contained in the presentence report (PSR).We reject that contention. "The purpose of a presentence investigation 'is to provide the courtwith the best available information upon which to render an individualized sentence' " (People v Thomas, 2 AD3d 982,984 [2003], lv denied 1 NY3d 602 [2004], quoting People v Perry, 36 NY2d 114,120 [1975]). "To that end, presentence reports should include 'all information that may have abearing upon' the court's sentencing determination . . . , even if such informationdoes not meet the technical rules for admissibility at trial" (id.; see CPL 390.30[3] [a]; 9 NYCRR 350.3, 350.6 [b]; People v Paragallo, 82 AD3d 1508 [2011]). Although defendantcorrectly contends that erroneous information in a PSR "create[s] an unjustifiable risk of futureadverse effects to [him] in other contexts" (People v Freeman, 67 AD3d 1202, 1203 [2009]), we conclude that"defendant has made no showing that the information [in the PSR] was inaccurate" (People vAnderson, 184 AD2d 922, 923 [1992], lv denied 80 NY2d 901 [1992]; seePeople v Whalen, 99 AD2d 883, 884 [1984]).
Under the "Legal History" section of the PSR, the author of the report wrote that "defendantwas accused but never charged with an incident in 2005 that involved the alleged sexual abuse ofa 4[-]year[-]old neighbor girl." Contrary to defendant's contention, that statement was properlyincluded in the PSR. Pursuant to 9 NYCRR 350.6 (b) (1), the presentence investigation process"shall consist of the gathering of available, relevant and reliable information from. . . official records relative to: arrests; previous conduct and complaints;convictions; [and] adjudications" (emphasis added). The regulation further provides, however,that "[f]or all investigations, the [probation] officer shall not gather information as to matterswhich have been terminated in favor of the [defendant] pursuant to[*2][CPL] 160.50." Where, as here, no charges were ever filed withrespect to the incident in question, there has been no matter terminated in the defendant's favorpursuant to CPL 160.50. Thus, the court properly denied defendant's request to redact thestatement concerning the 2005 complaint. Although that "notation would not be admissible at atrial, it was permissible [in the PSR because] it was based on information gathered during theinvestigation and was relevant to sentencing" (People v Jones, 77 AD3d 1178, 1179 [2010]).
We have reviewed defendant's remaining challenges to the PSR and conclude that they arewithout merit. Present—Scudder, P.J., Fahey, Lindley, Green and Gorski, JJ.