State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 2, 2015 106100
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v OPINION AND ORDER
GEORGE W. FISHEL III,
Appellant.
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Calendar Date: February 10, 2015
Before: Lahtinen, J.P., Garry, Lynch and Devine, JJ.
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Martin J. McGuinness, Saratoga Springs, for appellant.
Glenn MacNeill, Acting District Attorney, Malone, for
respondent.
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Devine, J.
Appeal from a judgment of the County Court of Franklin
County (Main Jr., J.), rendered May 13, 2013, convicting
defendant upon his plea of guilty of the crime of criminal sexual
act in the second degree.
In satisfaction of an indictment charging him with one
count each of criminal sexual act in the first degree and
endangering the welfare of a child, defendant entered an Alford
plea to criminal sexual act in the second degree and waived his
right to appeal. He was sentenced, as agreed, to 10 years of
probation and required to register as a sex offender. As
relevant here, conditions 17 and 32 of the court-ordered
probation provided that a copy of the presentence investigation
report (hereinafter PSI) would be made available upon request to
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any agency or individual involved in the evaluation, treatment or
rehabilitation of defendant, if the request were deemed
appropriate by the Probation Department, and required defendant
to consent to release of the PSI to any sex offender treatment
provider. Defendant now appeals.
Initially, we reject defendant's argument that his appeal
waiver was invalid. County Court adequately described the nature
of the waiver without "lumping [it] into the panoply of trial
rights automatically forfeited" by a guilty plea (People v Lopez,
6 NY3d 248, 257 [2006]), and confirmed defendant's understanding
of the waiver on multiple occasions (see id. at 254-255, 257).
Moreover, the court explained that, although defendant would
ordinarily retain the right to appeal upon pleading guilty, the
particular proposal being offered required him to give up that
right except as to constitutional issues and any violation by the
court of its sentencing commitment (see id. at 257). Under these
circumstances, County Court properly advised defendant that his
appellate rights were separate and distinct from those
automatically forfeited upon a guilty plea, and the record is
sufficient to establish that defendant knowingly, intelligently
and voluntarily waived his right to appeal (see id. at 256-257;
see also People v Bradshaw, 18 NY3d 257, 264 [2011]).
That said, even a valid waiver of the right to appeal will
not bar a challenge to an illegal sentence (see People v Lopez, 6
NY3d at 255; People v Callahan, 80 NY2d 273, 280 [1992]).
Similarly, although defendant concedes that his challenges were
not properly preserved, there is a "narrow exception to [the]
preservation rule permitting appellate review when a sentence's
illegality is readily discernible from the trial record" (People
v Santiago, 22 NY3d 900, 903 [2013]; see People v Nieves, 2 NY3d
310, 315-316 [2004]; People v Samms, 95 NY2d 52, 55-56 [2000]).
The Court of Appeals has recognized that this "illegal sentence"
exception encompasses a defendant's claims that a probation
condition is unlawful because it is not reasonably related to
rehabilitation or is outside the authority of the court to impose
(see People v Letterlough, 86 NY2d 259, 261, 263 n 1 [1995]; see
also People v Samms, 95 NY2d at 56). Thus, inasmuch as the
claims advanced herein implicate the legality of defendant's
sentence and any illegality is evident on the face of the record,
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those claims are not barred by either defendant's failure to
preserve them or his valid waiver of the right to appeal (see
People v Letterlough, 86 NY2d at 263 n 1; People v McElhearn, 56
AD3d 954, 955 [2008], lv denied 13 NY3d 747 [2009]; Matter of
Brandon W., 28 AD3d 783, 784-785 [2006], lv denied 7 NY3d 707
[2006]).1
Turning to the merits, we agree with defendant that
conditions 17 and 32 are illegal because they violate the
restrictions on disclosure of PSIs contained in CPL 390.50 and,
therefore, those conditions must be vacated. CPL 390.50 (1)
provides that a PSI "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 court that is
referenced in CPL 390.50 (1) is the sentencing court (see Matter
of Holmes v State of New York, 140 AD2d 854, 855 [1988]). While
the People argue that the challenged conditions constitute
specific authorization of disclosure by the sentencing court,
condition 17, on its face, is a blanket delegation to the
Probation Department to authorize disclosure of the PSI to
treatment providers if the department deems the request
appropriate. In our view, such a general authorization of
disclosure by the Probation Department is contrary to both the
statutory mandate of specific authorization and this Court's
direction that only the sentencing court can grant that
authorization.
1
In People v Nephew (200 AD2d 799 [1994]), this Court
stated that a valid appeal waiver bars a claim that a probation
condition "was not reasonably justified, necessary to [the
defendant] leading a law-abiding life or related to her
rehabilitation" (id. at 799). Nephew predated the Court of
Appeals' decisions in People v Letterlough (supra) and People v
Samms (supra), which established that such a claim amounts to a
challenge to the legality of the condition (see People v Samms,
95 NY2d at 56; People v Letterlough, 86 NY2d at 263 n 1), and it
should no longer be followed.
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Moreover, the requirement in condition 32 that defendant
consent to disclosure of the PSI is similarly contrary to law.
Under CPL 390.50, criminal defendants themselves are not entitled
to their PSI in collateral proceedings, absent statutory
authority, except under limited conditions, i.e., upon a proper
factual showing of need (see Matter of Campney v People, 279 AD2d
882, 882 [2001]; Matter of Blanche v People, 193 AD2d 991, 991-
992 [1993]; Matter of Holmes v State of New York, 140 AD2d at
855). Even when a defendant has demonstrated a need for
disclosure, he or she is never "automatically entitled to an
unredacted copy of [the PSI]" (Matter of Shader v People, 233
AD2d 717, 717 [1996]). Rather, in light of the requirement of
specific authorization and given the sentencing court's
discretion to except portions of a PSI from disclosure, the court
must make a determination whether redaction is appropriate (see
Matter of Rogner v People, 81 AD3d 1092, 1092-1093 [2011]; Matter
of Gutkaiss v People, 49 AD3d 979, 980 [2008]; Matter of Shader v
People, 233 AD2d at 717). That is, under the statute, a
defendant cannot demand or "consent" to release of the entire,
unredacted PSI – only the sentencing court can permit the release
of the PSI after the party requesting it has shown that the
information cannot be obtained in any other way, and only after
the court has considered whether redaction is necessary.
In sum, because conditions 17 and 32 represent a general
authorization by County Court to permit the Probation Department
to release the PSI when that department deems it appropriate,
they violate CPL 390.50 (1). Accordingly, they are invalid and
must be vacated (see People v Sawinski, 246 AD2d 689, 692 [1998],
lv denied 91 NY2d 930 [1998]; People v Bennor, 228 AD2d 745, 745-
746 [1996]; People v Martinez, 202 AD2d 735, 738 [1994]).
Defendant's remaining arguments are rendered academic by our
decision.
Lahtinen, J.P., Garry and Lynch, JJ., concur.
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ORDERED that the judgment is modified, on the law, by
vacating probation conditions 17 and 32, and, as so modified,
affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court