Current through Register Vol. 46, No. 12, March 20, 2024
(a) Order for Investigation and Report. 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 fingerprint- able 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.
(b) Scope of Investigation Process. 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
(1) Legal history: the
investigation shall consist of the gathering of available, relevant and
reliable information from New York and multi-state criminal history records and
other official records relative to: arrests; previous conduct and complaints;
convictions; adjudications; youthful offender eligibility; prior designated
felony act offenses; predicate felony status; persistent felony offender; DNA
and/or sex offender registration eligibility; dispositions; sentences; any
period of time respondent/defendant served in a placement/correctional
facility; information relevant to probation, parole, violation of probation or
parole proceedings; warrants; order(s) of protection; and any prior
deportation(s). For all investigations, the officer shall not gather
information as to matters which have been terminated in favor of the
respondent/defendant pursuant to Criminal Procedure Law, section
160.50 and Family Court Act, section
375.1.
When conducting an investigation upon an adult after conviction, JD and PINS
intake diversion records may be gathered, unless such records have been sealed
pursuant to Family Court Act, section
375.1.
The officer may, however, gather independent legal information voluntarily
received from other sources (such as the respondent/defendant, family members,
victims, schools or police) as to past behavior.
(2) Social circumstances: the investigation
shall consist of the gathering of available, relevant and reliable information
regarding past and present social circumstances, including:
(i)
(i)
(a) any systems involvement with the
respondent/defendant's family that may be relevant (i.e., local department of
social services, police, probation, Federal immigration);
(b) the family and home situation;
(c) citizenship and, if applicable, alien
status;
(d) financial and family
support obligations, including history of meeting those obligations;
(e) community and neighborhood
environment;
(f) peer/associate
relationships, including any gang involvement;
(g) educational status and vocational
skills;
(h) employment and military
experience;
(i) any violent
behavior in the home or community;
(j) access to weapons, ownership, and any
licenses related to such weapons;
(k) all other social circumstances that
constitute criminogenic risk, needs, and protective factors; and
(l) all significant patterns of which the
court should be aware, such as assaultive behavior, chemical dependency,
domestic violence, driving offenses, endangering or other reckless behavior,
mental health concerns or sexual offending.
(ii) For juvenile cases the investigation
shall also include the gathering of available, relevant and reliable
information regarding any:
(a) history of
running away;
(b) child
neglect/abuse;
(c) appropriate use
of parental authority and attitudes toward the child and their
behavior;
(d) consistency and
appropriateness of caring, rewards, discipline, and supervision in the
home;
(e) positive adult
relationships and social support networks;
(f) significant family conflict, or safety
concerns affecting either the respondent or other persons in the home (i.e.,
violence or abuse);
(g) school
adjustment, academic performance and conduct/special needs;
(h) previous social assistance provided by
voluntary or public agencies and the response of the youth to such
assistance;
(i) any detention or
other residential placement history, and the youth's adjustment to such
placement.
(iii) Where
an out-of-home placement of a juvenile is being considered, the probation
department shall consult with social services, as appropriate, and where
feasible shall address:
(a) whether
continuation in the respondent's home is contrary to the best interest of the
respondent;
(b) whether efforts
were made prior to the date of the dispositional hearing to prevent or
eliminate the need for removal of the respondent from his or her home;
and
(c) whether there is a
placement offer within proximity to the respondent's family, school, and
community.
(3)
Victim information: the investigation shall consist of the gathering of
relevant and reliable information related to the victim(s) of the offense/act
as such terms are defined in section
350.1 of this Part.
Where available, victim information shall address:
(i) each victim's age at the time of the
offense, gender, any special needs or disabling conditions, and relationship to
the offender;
(ii) all pertinent
information relative to each victim's version of the offense/act; the victim
impact statement(s), including physical, psychological, or economic injuries,
damages, and out-of-pocket losses sustained;
(iii) any violence or threatening behavior,
or other safety concerns related to the victim(s) or the victim(s)'
family;
(iv) any order of
protection that has been issued against the respondent/defendant;
(v) any restitution or reparation
sought;
(vi) any reimbursement
received or anticipated by the victim(s), whether from the Office of Victims
Services, or the victim(s)' insurance;
(vii) the victim's view toward
disposition/sentence;
(viii) and
all other relevant and reliable information of which the court should be aware,
and may include, where appropriate, information as to other individuals who may
have been victimized by the respondent/defendant.
(c) Conducting the investigation.
(1) Obtaining basic legal information. 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.
(i) Legal
history: respondent/defendant's legal history as indicated in paragraph (b)(1)
of this section shall be included when relevant to the recommendation or court
disposition/ sentence.
(ii)
Probation and Parole History: relevant legal history information related to
prior contact(s) with the courts, probation and parole, detention, pretrial
release, and supervision concerning the respondent's/ defendant's previous and
present compliance with diversion/supervision plans and conditions, and
participation in voluntary assessment and case planning services
(iii) Placement and institutional history:
information from institutional officials concerning the
respondent's/defendant's previous and present adjustment in
residential/incarceration settings.
(iv) Current offense/act: information: the
original charge/petition allegation, plea and conviction/adjudication; any
current orders of protection; the date and nature of the offense; the arresting
officer and any petitioner's statement; victim statement(s), including domestic
incident reports (DIRs); any witness statements; the respondent's/defendant's
written statement at the time of arrest; and the status of
co-respondent/co-defendant cases and all other pertinent information.
(2) Interviews with
Respondent/Defendant, or Subject(s) of the Court Order for Investigation.
Following the receipt of a court order, an in-person interview shall be held
with the respondent/defendant, or subject(s) of the court order for
investigation. All in-person interviews shall be directed toward obtaining and
clarifying relevant information and making observations of the
respondent/defendant's behavior, attitudes and character. During or prior to
the in-person interview, probation personnel shall obtain the appropriate
consent(s) for release of information and shall gather relevant information
identified by and available through such consent for release. In cases where
the defendant is in the custody of DOCCS and is not accessible for an in-person
interview with the probation department, the Institutional Probation
Investigation Interview and Protocols executed by the Division of Criminal
Justice Services and DOCCS shall be followed. On a case-by-case basis, where
the respondent/defendant resides in a distant jurisdiction and exigent
circumstances exist, as determined by the probation director, an interview may
be substituted for an in- person interview.
(3) Other interviews/contacts.
(i) Where the subject of the investigation is
a juvenile, the probation officer shall conduct an interview with the
parent(s)/guardian(s). Where appropriate for criminal court cases involving an
individual younger than 19 years of age at the time of the offense, the
probation officer shall attempt to contact and interview the
parent(s)/guardian(s)/custodial authority. The purpose of this interview is to
gather information from the parent(s)/guardian(s)/custodial authority regarding
their perspective of the following:
(a) child
and family background, important life events, and hardships;
(b) medical and psychological concerns or
disabilities, including any trauma, treatment, counseling, and suicidal
history;
(c) school history,
including achievements or problems;
(d) home environment, including family
relationships and any conflicts, behavior and discipline issues, and positive
or negative neighborhood influences;
(e) their ability and willingness to provide
appropriate supervision, including any problems that the parent is
experiencing;
(f) identification of
other supportive adults who are available to assist;
(g) the most appropriate disposition and the
impacts of such disposition on the child and family;
(h) any other relevant information that may
impact the court's decisionmaking; and
(i) where probation supervision is being
considered, how they will assist in meeting the identified goals of the
supervision plan.
(ii)
Except as provided for under subparagraph (i) of this paragraph, interviews
with the complainant, arresting police officer, family members and/or other
persons or agencies shall be made when deemed necessary for obtaining
additional and clarifying information, which is likely to influence the
recommendation or court disposition/treatment.
(iii) Where the offense/act includes one or
more victims, as such terms are defined in section
350.1 of this Part,
probation personnel shall communicate with each victim, and inform the
victim(s) of their right to seek restitution or reparation, and attempt to
secure the victim impact statement(s). The probation department may seek to
communicate with a victim's advocate or victim service provider to gather
additional victim information. In cases:
(a)
where a victim is a minor or is otherwise unable to assist; or
(b) resulting in death or serious injury, the
investigation shall include gathering of information from family member(s),
guardian(s), or significant other(s).
(iv) Where a source requests
"confidentiality", the probation officer shall explain that a request can be
made to the court to except information from disclosure, but that the court may
disclose any or all parts of the report.
(4) Types of assessment.
(i) Risk and needs assessment. The
investigating officer shall assess the respondent's/defendant's risk of
recidivism, criminogenic need areas, and protective factors (assets/strengths)
related to legal history, family and environment, education and employment,
physical and mental health, attitudes and cognitive skills.
(ii) Financial assessment. Where restitution
is sought and probation or conditional discharge is being considered, the
investigating officer shall assess the respondent's/defendant's ability to pay
restitution. The financial assessment shall also consider any other financial
obligation as that term is defined under section
353.1(a)
of this Part. This assessment may include gathering information regarding
personal expenses, lifestyle, and discretionary spending. It may specify assets
and liabilities, such as: income from employment, other income (e.g., veteran's
benefits, interest/dividends, supplemental security insurance, rentals,
pension, alimony, etc.), residence (mortgage amount, rent amount, owned
outright), vehicles owned (year, model, value), other assets (description,
value) (e.g., bank accounts, stocks, bonds, real estate), major credit cards
(maximum credit, unused credit), debts (e.g., credit card balances, judgments,
loans, etc.).
(iii) Community and
institutional resource assessment. The investigating probation officer shall
consider the availability of appropriate community and institutional
supervision and treatment resources to address the specific risks and needs
that must be targeted to reduce the risk of re-offending.
(5) Verification.
(i) Every reasonable effort shall be made to
verify the following:
(a) date of
birth;
(b) place of
birth;
(c) citizenship;
(d) alien status of respondent/defendant (if
foreign-born); where verification of alien status has not been achieved, the
steps taken to verify shall be noted in the narrative section of the
report;
(e) current address, and
where applicable in the case of current detention, homelessness, or residence
change, the intended address;
(f)
legal history;
(g) present offense;
and
(h) any victim's damages/out of
pocket financial loss/injuries sustained;
(i) any matter which the court directs to be
included.
(ii) In
addition to the above, the following shall also be verified when likely to have
a bearing on the recommendation or court disposition/treatment:
(a) living arrangements, including the names
of members of the household, and their relationship to the
respondent/defendant;
(b) mental
and physical health;
(c) treatment
providers;
(d) military
service;
(e) current educational
level and status;
(f) current
employment and salary; and
(g) any
other factor deemed relevant by the investigating probation officer.
(d)
Preservation of investigation materials. 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.