Title 9 Part 350

The objective of the investigation and report is to provide the court with relevant and reliable information, in a succinct, analytical presentation for decisionmaking. Also, to provide dispositional and regulatory agencies that are entitled to access with information for immediate and future decisionmaking purposes with respect to placement/incarceration, services and program delivery. These dispositional agencies shall include probation, social services, New York State Office of Children and Family Services (OCFS), Department of Corrections and Community Supervision (DOCCS), and any other public institution or agency.

This Part is applicable to all JD, PINS, family offense, custody, adoption, guardianship and neglect/abuse pre-dispositional investigations and pre-plea reports for the family courts and supreme or surrogate court where applicable and to all adult/youthful offender pre-plea, pre- sentence and any certificates of relief from disabilities investigations and reports for the criminal courts.

The probation investigative and reporting processes shall be impartial, fair, factual, analytical, pertinent, and relevant to the objective of the report. The investigating probation officer shall distinguish between fact and professional assessment, and between their own observations and those from other sources. The source of all relevant information shall be reported.

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 fingerprintable 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.

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.

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.

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.

The report shall be typed and all required identifying personal and legal information shall be set forth on the face sheet. For pre-dispositional/pre-plea/pre-sentence reports, the face sheet shall include, at a minimum, information as set forth in the DCJS probation pre-dispositional/pre-plea/presentence investigation report face sheet standardized template. The report may not necessarily include all information obtained through the investigation process as specified in section 350.6 of this Part. However, the report shall contain relevant and reliable information that may have a bearing upon the recommendation or court disposition/sentence as well as any information directed by the court.

• criminogenic risk reduction;

• offender compliance with State and Federal laws;

• measures to ameliorate the conduct which gave rise to the offense/petition, or prevent incarceration or placement;

• addressing social, educational, vocational, and treatment needs;

• incorporating special offender population requirements, where applicable, such as sex offender registry, ignition interlock, and electronic monitoring.

DNA sample collection shall be recommended as a special condition for all designated offenders. Further, DNA sample collection shall be considered for all non-designated offenders, except where the defendant, pursuant to a plea agreement has already signed a waiver authorizing DNA collection, or where youthful offender status is mandatory.

• Community-based disposition/sentence: where a community-based disposition/sentence is recommended, including a split sentence of jail and probation, or will likely be imposed, a special condition shall include the rate of payment and a date prior to expiration of the term of sentence that restitution must be satisfied.

• Jail-bound disposition/sentence: where jail is recommended or will likely be imposed, restitution shall be recommended.

• Prison-bound disposition/sentence: where prison is recommended or will likely be imposed, a rate of payment shall not be specified; the start date for payments shall not be recommended for deferral; and the recommendation to the court shall recognize that DOCCS may collect restitution from income received during the period of incarceration.

Upon receipt of a court order/request, the probation department shall conduct a certificate of relief from disabilities investigation of an applicant subsequent to the sentencing of such applicant.

The investigation and report shall conform to requirements specified in the court order/request. In the absence of any such specification, the investigation and report shall consist of the gathering of information with respect to the applicant's legal history, the applicant's current social circumstances, including current employment and economic status. It shall also include the nature of the relief requested as it relates to employment, rehabilitation, and public interest/safety. It shall include a recommendation as to the granting of the State of New York certificate of relief from disabilities (DCJS-OPCA-53) and the relief to be granted.

The probation department shall conduct a pre-plea investigation only upon a court order and written authorization by the defendant, defendant's attorney, and the prosecuting attorney. Such written authorization and waiver for pre-plea probation and investigation and report (such as DCJS-OPCA-2.2A) shall include statements that no probation department personnel will be called to testify regarding information acquired by the probation department, that information obtained by the probation department may not be used in a subsequent trial, and that this exemption does not apply to defense or prosecutorial investigation material which may be included in the report.

Generally, the investigation and body of the report shall conform to sections 350.6 and 350.7 of this Part. The recommendation shall take into account that at the time of report preparation there is no conviction. Where the defendant declines to discuss the current offense, whether on the advice of counsel or of their own volition, this shall be noted in the report.

Upon a conviction by plea, in all cases where a pre-sentence investigation is required by statute and whenever sentencing does not occur at the time of such conviction by plea, the pre-plea investigation and report may be utilized as a pre-sentence report unless the court orders that the report be updated, or, the probation department has learned of other relevant information. In such cases, an addendum may be attached to the pre-plea report.

The probation director shall establish written policy and procedure to ensure that the court has sufficient time to read the report prior to court disposition/sentence and to make appropriate exceptions for disclosure purposes as follows:

Probation departments shall accumulate and transmit, at a minimum, once every three months, a copy of all pre-sentence reports prepared in the case of defendants who are known to be licensed pursuant to Title 8 of the Education Law to the State Department of Health if the licensee is a physician, a specialist's assistant, or a physician's assistant, and to the State Education Department with respect to all other such licenses. Such reports may be submitted in hard copy or electronically, and shall contain such other information as required by Criminal Procedure Law 390.50(6).

Accessibility of probation reports is limited to those authorized by law or court order, and as specified in part 348, DCJS's case record management rule.

Upon receipt of a court order and in the absence of court direction, the scope of the investigation, type of report, format and content for all other family related matters shall be in accordance with local probation policies and procedures. In custody, adoption, visitation, and guardianship investigations, the parties of the investigation are subject to fingerprinting in order for probation to obtain complete access to any criminal history information. Therefore, the scope of these investigations shall include a multi-state criminal history search, and the probation officer shall include any such criminal history information in the report.

Where a county or the City of New York has adopted a local law authorizing its probation department to receive an investigation fee for conducting an investigation pursuant to Family Court Act, section 653, the schedule of payment(s) of any such fee should be imposed by the court at the time the investigation is ordered. Pursuant to Family Court Act, section 252-a, all fees shall be paid directly to the local probation department. To facilitate the effective administration of fee collection, it is recommended that the court require completion of the schedule of payment(s) on or before the next court date. In the event payment is not completed by such time, it is recommended that the balance be paid before completion of the hearing or submission of the final order and that any schedule of remaining payment(s) provide for a designated amount to be paid at specified intervals.