Part 350 of Title 9 NYCRR is repealed and a new Part 350 is amended to reflect current best practice and emphasize recent statutory changes and policy direction to promote greater offender/respondent accountability, interests and safety of victims and youth, as well as to provide key information regarding the individual who is the subject of a court-ordered investigation to ensure appropriate decision-making. These changes clarify and update certain existing provisions to ensure good professional practice, and provide flexibility in specific areas while maintaining quality service delivery. The rule also better distinguishes and integrates provisions with respect to juvenile, criminal court, and other court investigations and reports.

The definitional section, Section 350.1 is retained. However it has been expanded to include and/or clarify particular terms, such as legal history, social circumstances, verification, victim, victim impact statement, and various types of interviews.

A newly added Section 350.2 clarifies the varied types of investigations which probation conducts and Section 350.4 governing applicability establishes the scope of the investigation and report rule consistent with this earlier noted section.

Section 350.3 entitled “Objective” delineates those dispositional and regulatory agencies that may or are required to receive probation reports for immediate or future decision-making.

Section 350.5 provides a general statement as to investigations and reports and clarifies the need to distinguish between fact and professional assessment, information sources, professional and other assessment protocols and observations, and to cite sources of information.

Section 350.6 governs the investigation process. Previous language in this area has been reworked and certain noteworthy provisions are highlighted below:

(a) Order for investigation and report. Refers to DPCA-2.2 Court Order for Investigation and Report to obtain the required information necessary to initiate the investigation and report process. The CJTN and NYSID are also required in this document. Allows for entry of information into an electronic case record management system.

(b) Scope of investigation. Refers to DPCA-221 Pre-Dispositional/Pre-Plea/Pre-Sentence Investigation Report Worksheet for the minimum required information, and articulates that this information is to be included where it has a bearing on the disposition of a case. This section organizes the format and contents of the report, incorporating areas to be addressed, both new and as previously described in various sections of the existing rule. It more clearly distinguishes the information required for juvenile and criminal court investigations, and incorporates more recent changes in law and probation practice (i.e. SORA eligibility, persistent and predicate felony status, immigration and alien status, juvenile placement considerations). This section specifies and expands the range of risk, need and protective factor information to be included. It requires victim information in all cases where there is a victim, and specifies and expands the types of information to be sought from and about the victim. It clarifies who can speak on the victim's behalf and addresses reimbursement received from Crime Victims Board.

(c) Conducting the investigation.

d. Preservation of investigation materials. Adds that the probation officer shall document the sources of information.

Section 350.7 governs preparation of reports and highlighted below are important features:

(a) Scope of report. Provides that the Investigation Facesheet must contain the information as provided for in DPCA-220 Pre-Dispositional/Pre-Plea/Presentence Investigation Report Facesheet.

(b) Informational contents of report and format. Provides for the following:

Section 350.8 governs certificate of relief from disabilities investigations and reports and is similar to existing language, except for the new language which requires a recommendation be made as to the relief to be granted.

Section 350.9 pertains to special requirements for pre-plea investigations and reports which is similar in nature to existing language, yet clarifies in general the scope of pre-plea investigations and reports shall conform to pre-dispositional reports, that the recommendation shall take into account that there is no conviction, and recognizes situations where on advice of counsel or their own volition, the defendant declines to discuss the current offense.

Section 350.10 governs submission, transmittal and confidentiality of probation reports and while similar to existing language, it has been updated to conform to state law and reflect recent regulatory changes to DPCA's case record rule governing confidentiality and accessibility of probation reports.

Section 350.11 governs pre-disposition investigations and reports in all other family court cases and while similar to existing regulatory provisions, new language requires fingerprinting and criminal history search of the parties in custody, adoption, visitation, and guardianship investigations to conform to recent statutory changes in this area.

Lastly, Section 350.12 retains without change guidelines, as required by Family Court Act Section 252-a, for schedule of payments relating to family court custody investigation fees which have been authorized by law.

Nonsubstantive changes made to Section 350.7(b)(2) and (3) do not necessitate revision of the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis, and Job Impact Statement.

The Division of Probation and Correctional Alternatives (DPCA) received two comments relative to the proposed investigation and report rule after the official public comment period ended which we reviewed and considered to foster better understanding of DPCA's willingness to engage practitioners in a discussion of collaboration and achieving what is model practice.

The first, from the New York City Department of Probation (NYCDOP), raised virtually identical issues contained in prior letters responding to earlier internal rule drafts DPCA shared with all local probation departments. These earlier draft rules were a culmination of efforts to update DPCA's investigation and report rule by a DPCA established professional workgroup comprised of state and county probation practitioners with representation from urban and rural jurisdictions. Prior to submitting the proposed rule for filing, DPCA reviewed all concerns and suggestions, incorporated certain rule changes, and shared issues raised with the State Probation Commission, the advisory body to the State Director of Probation and Correctional Alternatives which supported the proposed rule with slight revision. DPCA also discussed NYCDOP issues raised with the Council of Probation Administrators (COPA) the statewide professional association of probation directors and gained their support on particular DPCA positions with respect to proposed rule changes. DPCA verbally communicated with NYCDOP as to what changes DPCA would incorporate and that the remaining suggestions would not be made at the present time. Moreover, DPCA comments to their specific concerns are as follows:

As to the issue of in-person interviews for all respondent/defendants, NYCDOP believes “it is not reasonable to require a face-to-face interview in adult criminal cases involving plea bargains in state prison cases” and instead recommends that DPCA “expressly exempt those cases from any in-person interview requirement”. After further dialogue with probation professionals across the state, DPCA was willing to modify our earlier draft and incorporated specific language in proposed Rule Section 350.6(c)(2) that provides relief from an in-person interview on a case-by-case basis where the individual resides in a distant jurisdiction and the probation director has determined exigent circumstances exist. Instead an “interview” may be substituted. This term, defined in proposed Rule Section 350.1(a), recognizes an “in-person interview, or another form of telecommunication, such as telephone or e-mail”. This compromise was viewed as reasonable by the State Probation Commission and other probation practitioners and the recent Task Force on Probation hearings reinforced support towards DPCA's position not to provide a blanket exemption to in-person interviews on plea bargain cases, even where state prison bound.

With respect to victims, NYCDOP voices several issues. As to proposed Rule Section 350.6(c)(3)(iii), DPCA believes that “[W]here the offense/act includes one or more victims, probation personnel shall communicate with each victim.” NYCDOP's recommendation is that this be “discretionary”. DPCA disagreed as it is important that all victims have the opportunity to provide a victim impact statement. As to NYCDOP's claim that “[O]ften the local probation department has little or no information regarding victims”, DPCA previously incorporated language that the probation department “may seek to communicate with a victim's advocate or victim service provider to gather additional victim information.” As to comments that “this rule should prohibit the inclusion of telephone numbers as well as addresses of any victim or victim family member”, NYCDOP previously raised this comment when responding to an earlier draft. Proposed Rule Section 350.7(b)(2)(iv) states unequivocally that “The report shall not include the address or the phone number of any victim or victim family”. As to their concern with respect to victims in context of pre-plea investigations, DPCA has recognized that “Generally, the investigation and body of the report shall conform to Section 350.6 and 350.7.” DPCA believes that sound professional practice by probation departments across the state will incorporate key provisions in pre-plea investigations and reports, including victim provisions and therefore we did not see the necessity to repeat all salient provisions. Should it be necessary at another point in time due to problems, DPCA will revisit the scope of pre-plea investigations and reports.

As to NYCDOP's suggestion that in pre-plea matters “that the recommendation not be initially mandated as there is no plea or conviction”, DPCA's proposed Rule Section 350.9 establishes that the “recommendation shall take into account that at the time of report preparation there is no conviction.” When ordered to conduct the investigation and report, however probation is made aware of the pre-plea. While NYCDOP believes that it “is critical that probation be able to provide a recommendation before the plea is taken”, their remark that “all too often, a post-plea recommendation has little or no impact” reinforces DPCA's decision to recognize a probation recommendation at this stage. DPCA over the years has received anecdotal information from probation professionals, that probation recommendations at times has made a difference in the ultimate plea arrangement and influenced sentencing. As to requiring probation instead to do an update before the court accepts a plea, proposed rule Section 350.9(c) recognizes upon conviction by plea in all cases where the pre-sentence investigation is required and whenever sentencing does not occur at time of conviction by plea, the pre-plea investigation and report may be utilized unless the court orders an update or probation has learned of other relevant information, in which case an addendum may be attached to such report. It appears unnecessary and burdensome and DPCA does not choose at this time to create an additional regulatory procedural requirement to mandate an update in all instances.

As to NYCDOP's public safety concern as to “inclusion of addresses of accomplices/co-respondents/co-defendants be included in the report”, address language has been in DPCA's investigation and report rule for over twenty years and DPCA has not heard of any reported problems in this area. Further, statutory language found in Criminal Procedure Law Section 390.50(2) establishes parameters by which a court may except from disclosure a part or parts of the report. Accordingly, DPCA does not believe a rule change in this area is necessary.

With respect to DNA collection, NYCDOP has indicated that it will “reserve comment” as to DPCA's rule requirement with limited exception that “DNA sample collection shall be considered for all non-designated offenders” because “that issue is currently the subject of pending litigation.” Although, there is pending litigation, DPCA's language in this area is premised on the Division of Criminal Justice Services regulation in this area, having the force and effect of law, establishing a mechanism for collection for certain non-designated offenders.

As to NYCDOP's disagreement with what it refers to “as the mandate that restitution be recommended in jail-bound cases” and their rationale for doing so, DPCA respectfully disapproves of their suggestion. DPCA's proposed Rule Section 350.7(b)(5)(iii) seeks to promote greater imposition of restitution consistent with law. Specifically, Penal Law Section 60.27(1) establishes that a court “may require restitution or reparation as part of the sentence imposed upon a person convicted of an offense”. DPCA's rule with respect to restitution and special mention of jail-bound, prison-bound, and community-based dispositions reinforce the law and will better ensure courts are made aware of restitution sought by victims. Additionally, CPL 390.50(3)(b) requires “the report shall also contain a victim impact statement, unless it appears that such information would be of no relevance to the recommendation or court disposition”. Ancillary issues which NYCDOP raises as to our rule provision in the area of restitution being a “burden on probation” was not shared by the overwhelming majority of other probation departments which commented on prior internal rule drafts. Accordingly, DPCA has made no further changes in this area.

NYCDOP suggested that “DPCA should expressly qualify the requirement that, in Family Court, probation reports be submitted five court days prior to disposition”, because “a shorter advance submission is necessary in Family Court 10-day remand cases” DPCA has previously communicated that our rule provision mirrors Family Court Act Sections 351.1(5)(a) and 750(2). Accordingly, DPCA cannot through rule making override existing law as to such timeframes.

As to “when a PSI must be sent to a licensing agency”, DPCA has previously taken into consideration NYCDOP's view and shared our position with them which we believe is consistent with CPL 390.50(6). While NYCDOP prefers that this rule provision be narrowed to when at time of sentencing probation is aware that a defendant is licensed pursuant to Title 8 of the Education Law, overall the provisions of this CPL Section governing probation's sharing or disclosing pre-sentence report information is not limited to the day of sentence. While NYCDOP conveys “[I]t cannot reasonably be probation's continuing responsibility to send the PSI to a licensing agency, for example, if the probationer obtains a license after being sentenced to probation, a local probation agency cannot reliably be certain of obtaining such information.”, DPCA believes that it is in the interests of public safety and reasonable that the statutory provision be interpreted to provide probation with the ability to subsequently provide any such report on a probationer known to be licensed pursuant to Title 8 so that licensing officials are better made aware of criminal convictions of licensees. Admittedly, there may be instances where probation is not aware that the person is licensed under Title 8. However, in the case of an individual under probation supervision, there exists a pertinent mandatory condition of probation which should assist probation in obtaining such information. Specifically, CPL Section 390.50(6) and Penal Law Section 65.10(3)(c) collectively establish that a defendant under interim probation supervision or any probationer sentenced by a criminal court must “[A]nswer all reasonable inquiries by the probation officer and notify the probation officer prior to any change in address or employment.”

While NYCDOP opposes probation providing recommendations in all Family Court civil matters such as custody, adoption, guardianship, and neglect/abuse proceedings, DPCA's rule changes do not require recommendations. Specifically, proposed Rule Section 350.11 states that “in the absence of court direction, the scope of the investigation and content for all other family court related matters shall be in accordance with local probation policies and procedures.” As to custody recommendations, while two appellate courts have issued similar rulings in this area, no changes appear necessary because of aforementioned language as to court direction appears to suffice.

With respect to reported structural concerns, NYCDOP prefers that our rule differentiate more between various adult and juvenile investigations and reports. DPCA's workgroup initially discussed separate provisions and determined that it would be duplicative and unnecessary in most instances and instead that the scope can be gleaned from context and by language “where applicable”. Training and/or technical clarification to staff can clarify remaining issues. Moreover, the overwhelming consensus from other probation departments did not support such a change. As to other provisions relative to “victim information” and “parental information”, the former is not limited to criminal and delinquency matters as family offense and PINS cases can also be ordered to make restitution. Further, the latter is not limited solely to delinquency matters and silent as to youthful offenders. It pertains to “where the subject of the report is a juvenile, or where appropriate for a criminal court case involving an individual younger than 19 years of age”. Lastly, legal history information is relevant for custody, adoption, guardianship investigations and recognized by Executive Law Section 243(3)(b).

The second comment was received from the New York State Defender's Association Inc. and advocates that DPCA modify its regulation to establish that “[F]or all criminal court cases the probation report shall be submitted to the court not less than five court days prior to sentencing except if waived by the parties”. DPCA's language, however, mirrors CPL 390.50(2) and we cannot through rule making override existing statutory timeframes. DPCA does not disagree as to providing defense with additional time to review the probation report; however a legislative change must occur for this to happen. Other comments raised focused on the value and accuracy of these reports. DPCA is committed to promote statewide the importance and integrity of such reports and to continue to work with interested parties to improve their quality.