Calendar Date: May 1, 2018
C. Mulliken, Harpersfield, for appellant.
A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of
counsel), for respondent.
Before: Garry, P.J., McCarthy, Devine, Aarons and Pritzker,
from an order of the County Court of Saratoga County (Catena,
J.), entered April 13, 2015, which granted a motion by the
People for limited disclosure of a presentence investigation
report pursuant to CPL 390.50.
pleaded guilty to attempted criminal possession of a weapon
in the third degree in Saratoga County, and a presentence
investigation report (hereinafter PSI) was prepared for
County Court prior to his 2006 sentencing. Several years
later, an indictment was handed up in Schenectady County
charging defendant with various offenses. The Schenectady
County District Attorney believed that the PSI contained
information relevant to the new criminal action and, as a
result, applied to County Court for the limited disclosure
and use of the PSI. County Court granted that request,
prompting this appeal by defendant.
appeal lies from a determination made in a criminal
proceeding [or action] unless specifically provided for by
statute" (People v Hernandez, 98 N.Y.2d 8, 10
 [citation omitted]; see CPL art 450;
People v Smith, 27 N.Y.3d 643, 647 ). The
Saratoga County District Attorney appears on this appeal to
argue that the appeal has been taken from an order issued in
a criminal action and that, due to the lack of statutory
authority, it must be dismissed. Under the facts of this
case, we agree.
390.50 (1) provides for the confidentiality of a PSI, but
permits disclosure "to any person or public or private
agency... upon specific authorization of the [sentencing]
court" (see People v Fishel, 128 A.D.3d 15, 18
; Holmes v State of New York, 140 A.D.2d 854,
855 ). The criminal action that produced the PSI
"terminate[d] with the imposition of sentence, "
making the present application to County Court a new
proceeding or action of some sort (CPL 1.20 ). The nature
of that proceeding is not defined by CPL 390.50 and, inasmuch
as "County Court is vested with both criminal and civil
jurisdiction, " it need not be criminal in nature
(People v Hoppe, 239 A.D.2d 777, 777 ;
see NY Const, art VI, § 11 [a]; Matter of
Abrams [John Anonymous], 62 N.Y.2d 183, 190 ).
Indeed, we have entertained appeals from orders seeking
disclosure of a PSI in connection with collateral
administrative matters, such as applications for inmate
programs and appearances before the Board of Parole (see
e.g. Matter of Rogner v People, 81 A.D.3d 1092, 1092
; Matter of Davis v People, 52 A.D.3d 997, 997
; Matter of Campney v People, 279 A.D.2d 882,
882 ; Matter of Kilgore v People, 274 A.D.2d
636, 636-637 ; Matter of Allen v People, 243
A.D.2d 1039, 1039-1040 ), as well as civil actions
(see Holmes v State of New York, 140 A.D.2d at 855)
. It is accordingly incumbent upon us
to "'look to the true nature of [the] proceeding
[or action] and to the relief sought in order' to
determine whether the proceeding [or action] is a special
civil [matter] giving rise to an appealable order or,
instead, a criminal proceeding [or action] for which an
appeal must be statutorily authorized" (Matter of
381 Search Warrants Directed to Facebook, Inc. [New York
County Dist. Attorney's Off.], 29 N.Y.3d 231, 245
, quoting Matter of Abrams [John Anonymous],
62 N.Y.2d at 191; see Matter of Hynes v Karassik, 47
N.Y.2d 659, 661 n 1 ).
regard, the Schenectady County District Attorney's Office
applied for disclosure of the PSI with the aim of using it in
a pending criminal action against defendant. The application
therefore "relate[s] to a prospective, pending or
completed criminal action" so as to constitute a
criminal matter, and statutory authorization is required to
appeal from any order emanating from it (CPL 1.20  [b]).
No such authorization can be found in CPL 450.10 or 450.15
and, thus, the present appeal must be dismissed (see
People v Brunner, 274 A.D.2d 977, 977 ; People
v Wosu, 256 A.D.2d 1247, 1248 [4th Dept 1998]).
final matter, defendant was convicted of various offenses in
the Schenectady County matter. The order issued by County
Court, even though it came from a court different from the
one of conviction, could nevertheless "properly be
considered as a part of the record of the case by an
appellate court upon an appeal from [the] judgment of
conviction" therein (CPL 1.20  [b]). Defendant is
free, as a result, to attack the propriety of County
Court's order upon his direct appeal from the judgment of
conviction in Schenectady County (see CPL 450.10
P.J., McCarthy, Aarons and Pritzker, JJ., concur.
that the ...