New York State Court of Claims

New York State Court of Claims

WONG v. STATE OF NEW YORK, #2009-039-126, Claim No. 111078, Motion No. M-75492


Claimant’s request for issuance of a subpoena duces tecum related to copies of his parole records is granted with respect to portions of the records provided to the Court for in camera review. The Court concludes that, pursuant to Criminal Procedure Law 390.50, it is without authority to entertain claimant’s request for his presentence report. The Court further concludes that, notwithstanding the presumption of confidentiality accorded parole case records pursuant to Executive Law § 259-k and 9 NYCRR 8000.5, there is no legitimate reason to bar claimant access to his own criminal history record contained in his parole case records.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

James H. Ferreira
Claimant’s attorney:
Beldock, Levine & Hoffman LLP
By: Sofia Yakren, Esq. Jonathan C. Moore, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Stephen J. MaherAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 21, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


In motion papers filed September 5, 2008, claimant requested the issuance of a subpoena duces tecum upon the New York State Division of Parole (hereinafter “NYSDOP”) for parole records pertaining to claimant (Motion No. 75492). On September 15, 2008, defendant filed a response agreeing to provide all “non-confidential” NYSDOP records relating to claimant but opposing the production of claimant’s presentence report related to his original 1984 conviction of armed robbery in the first degree[1] and claimant’s “rap sheet”. In a reply affirmation filed September 24, 2008, counsel for claimant withdrew the motion for a subpoena, but requested “a Court order requiring defendant to disclose to him all of his Parole records, including the pre-sentence report and rap sheet” (emphasis in original).

On or about April 1, 2009, defendant submitted to this Court for its in camera review certain NYSDOP records containing (1) approximately 69 pages of “confidential” materials relating to claimant’s initial incarceration in 1984 through his release from State Prison in 2005, and (2) approximately 14 pages of “confidential” materials relating to claimant’s 1987 conviction for the murder of Tyrone Julius. These records include, inter alia, claimant’s presentence report relating to his original 1984 conviction of armed robbery in the second degree and information summarizing claimant’s criminal history. At the time of the submission to the Court, defendant also disclosed to claimant other NYSDOP documents, and then later supplemented that response to claimant on or about May 14, 2009.

Claimant contends that he has a “clear legal right” to his presentence report for use in proceedings other than sentencing, and that there is no statutory or regulatory authority precluding him from obtaining his own “rap sheet” or criminal history records. Defendant maintains that claimant’s presentence report is protected from disclosure pursuant to CPL 390.50 and that claimant’s “rap sheet” may not be released pursuant to 9 NYCRR § 8000.5 (c) (2).

Presentence Report

Criminal Procedure Law 390.50 (1) states that a “pre-sentence report or memorandum submitted to the court ... is confidential and may not be made available to any person or public or private agency except where specifically required or permitted by statute or upon specific authorization of the court”(emphasis added). The statutory language allowing disclosure of the report “upon specific authorization of the court” refers, however, to the sentencing court and “[n]o other court is statutorily authorized to permit disclosure of this highly confidential material” (Holmes v State of New York, 140 AD2d 854, 855 [1988]; see also Matter of Thomas v Scully, 131 AD2d 488, 490 [1987] [“the words ‘the court’ as used in CPL 390.50(1) mean the court which imposed the sentence”]; Legal Aid Bureau of Buffalo, Inc., v Armer, 74 AD2d 737 [1980] [“[t]he sentencing Judge, familiar with the report and with whatever parts thereof redacted, if any, is the proper court to entertain these applications”]; People v Muniz, 15 Misc 3d 1132(A) [2007][“the court with authority to order disclosure is the sentencing court, as distinguished from a court where a collateral proceeding is pending” [citations omitted]]”; 34A NY Jur 2d, Criminal Law: Procedure § 2946). Accordingly, this Court has no jurisdiction to entertain an application to disclose claimant’s presentence report arising from his 1984 conviction for armed robbery.

Even if this Court had the legal authority to order disclosure of claimant’s presentence report, there has been no factual showing here that “the material was necessary to the prosecution of the action, that efforts were made to obtain the desired information by other means and that it was unavailable” (Holmes v State of New York, supra at 855; see also People v Muniz, supra; Strecker v Sarafian, 153 Misc 2d 959, 960 [1992]).

Rap Sheet

Defendant asserts that 9 NYCRR 8000.5 (c) (2) precludes the release of claimant’s rap sheet as part of claimant’s parole records. Claimant argues that 9 NYCRR 8000.5 does not bar disclosure of claimant’s own criminal history to claimant and his counsel.

Preliminarily, the Court finds no language in either Executive Law § 259-k or 9 NYCRR 8000.5 addressing how a request for a rap sheet or criminal history records should be treated.[2] Notwithstanding the absence of such guidance, it is evident that case records maintained by NYSDOP are to be treated as confidential and only disclosed under certain conditions. Executive Law § 259-k provides that “[t]he [parole] board shall make rules for the purpose of maintaining the confidentiality of records, information contained therein and information obtained in an official capacity by officers, employees or members of the division or board of parole” (emphasis added). 9 NYCRR 8000.5 (c) (2) sets forth the myriad of policy interests inherent in any request for access to a parole case record including, but not limited to, protecting internal decision making by the Board, allowing for free expression by private citizens on parole decisions, and permitting candid opinions and recommendations by NYSDOP professional staff.

New York courts interpreting Executive Law § 259-k and 9 NYCRR 8000.5 have generally found that access to parole case records is limited and that such materials are confidential and protected from disclosure (see Robles v Tracy, 275 AD2d 837 [2000] [Executive Law § 259-k and 9 NYCRR 8000.5 “clearly direct that parole records remain confidential”]; Matter of Collins v New York State Division of Parole, 251 AD2d 738 [2000] [“Executive Law § 259-k provides a clear legislative intent to establish and maintain the confidentiality of parole records”]; Matter of Jordan v Hammock, 86 AD2d 725 [1982] [letters in a parole case record from private citizens relating to parole eligibility are protected and remain confidential under 9 NYCRR 8000.5 (c) (2)]; Matter of Robertson v Chairman of N.Y. State Bd. of Parole, 122 Misc 2d 829, 831 [1984] [“Section 259-k . . . authorizes the Parole Board to make rules for the purpose of maintaining the confidentiality of records”).

Notwithstanding the presumption of confidentiality accorded a parole case record, here the Court finds no legitimate reason to bar claimant access to his own criminal history record contained in his parole case records. The summary of claimant’s criminal history contained in his parole records does not reveal internal Parole Board decision making, candid discussions between Parole Board staff or comments from private citizens. Moreover, claimant seeks his own criminal history and not the criminal history record of another individual, the latter being a scenario where courts have denied such requests (see Robles v Tracy, supra; Matter of Gerace v Mandel, 267 AD2d 386 [1999]; Matter of Williams v Erie County District Attorney, 255 AD2d 863 [1998]; Matter of Collins v New York State Division of Parole, supra; Matter of Bennett v Girgenti, 226 AD2d 792 [1996] lv denied 88 NY2d 805 [1996]).

Nor does it seem rational for the Court to deny claimant’s request for disclosure of his own criminal history when such information is readily obtainable by him from the New York State Division of Criminal Justice Services (hereinafter “DCJS”). Pursuant to 9 NYCRR 6050.1, DCJS created a procedure which allows “[a] person, or a person’s attorney who has been duly authorized in writing . . . [to] obtain a copy of the criminal history record information maintained by . . . [DCJS] pertaining to such person.”

Other Documents

The Court has reviewed the remaining documents contained in defendant’s April 1, 2009 submission for in camera review and finds that certain documents within claimant’s parole case record may be disclosed as these particular documents do not invoke the confidentiality concerns set forth in 9 NYCRR 8000.5 (c) (2). The remaining documents not disclosed either contain information which may be confidential and protected from disclosure or which, even if not considered confidential under 9 NYCRR 8000.5, are not material and necessary, and thus relevant, to the prosecution of claimant’s claim under Court of Claims Act § 8-b.

Based on the foregoing, it is hereby

ORDERED that M-75492 is granted to the extent that defendant is directed to disclose to claimant, within 14 days from the date of filing of the Court’s Decision and Order, those portions of the NYSDOP records submitted to the Court on April 1, 2009 as are attached to defendant’s copy of the Court’s Decision and Order (all remaining documents not disclosed are to be returned to defendant); and it is further

ORDERED that the records to be disclosed pursuant to the Court’s Decision and Order shall have any personal or identifying information redacted, and are disclosed for the purposes of this litigation only and shall not be used for any other purpose; and it is further

ORDERED that M-75482 is denied in all other respects.

July 21, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:
  1. Notice of motion filed September 5, 2008;
  2. Affirmation in support of motion for issuance of a subpoena duces tecum dated August 29, 2008;
  3. Answering affirmation in opposition dated September 15, 2008; and
  4. Affirmation in reply to opposition affirmation dated September 24, 2008.

[1].Defendant’s papers describe claimant’s original 1984 conviction as one for armed robbery in the second degree. However, the record before the court indicates that he was convicted in 1984 of armed robbery in the first degree and of two other felony charges arising from a 1983 incident in Suffolk County, New York.
[2].During its review of the materials submitted to the Court for in camera review, the Court did not find any document entitled “rap sheet.” There were documents entitled “Criminal Sentence Information” which appear to summarize claimant’s own criminal history.