        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

640
KA 10-00470
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

JOHN C. RUDDUCK, DEFENDANT-APPELLANT.


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered February 17, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal sexual act in the
first degree and predatory sexual assault against a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

      Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal sexual act in the first degree
(Penal Law § 130.50 [3]) and predatory sexual assault against a child
(§ 130.96). His sole contention on appeal is that County Court erred
in denying his motion to redact erroneous information contained in the
presentence report (PSR). We reject that contention. “The purpose of
a presentence investigation ‘is to provide the court with the best
available information upon which to render an individualized
sentence’ ” (People v Thomas, 2 AD3d 982, 984, lv denied 1 NY3d 602,
quoting People v Perry, 36 NY2d 114, 120). “To that end, presentence
reports should include ‘all information that may have a bearing upon’
the court’s sentencing determination . . ., even if such information
does not meet the technical rules for admissibility at trial” (id.;
see CPL 390.30 [3] [a]; 9 NYCRR 350.3; 350.6 [b]; People v Paragallo,
82 AD3d 1508). Although defendant correctly contends that erroneous
information in a PSR “create[s] an unjustifiable risk of future
adverse effects to [him] in other contexts” (People v Freeman, 67 AD3d
1202, 1203), we conclude that “defendant has made no showing that the
information [in the PSR] was inaccurate” (People v Anderson, 184 AD2d
922, 923, lv denied 80 NY2d 901; see People v Whalen, 99 AD2d 883,
884).

     Under the “Legal History” section of the PSR, the author of the
report wrote that “defendant was accused but never charged with an
incident in 2005 that involved the alleged sexual abuse of a 4[-
                                 -2-                           640
                                                         KA 10-00470

]year[-]old neighbor girl.” Contrary to defendant’s contention, that
statement was properly included in the PSR. Pursuant to 9 NYCRR 350.6
(b) (1), the presentence investigation process “shall consist of the
gathering of available, relevant and reliable information from . . .
official records relative to: arrests; previous conduct and
complaints; convictions; [and] adjudications . . .” (emphasis added).
The regulation further provides, however, that “[f]or all
investigations, the [probation] officer shall not gather information
as to matters which have been terminated in favor of the [defendant]
pursuant to [CPL] 160.50.” Where, as here, no charges were ever filed
with respect to the incident in question, there has been no matter
terminated in the defendant’s favor pursuant to CPL 160.50. Thus, the
court properly denied defendant’s request to redact the statement
concerning the 2005 complaint. Although that “notation would not be
admissible at a trial, it was permissible [in the PSR because] it was
based on information gathered during the investigation and was
relevant to sentencing” (People v Jones, 77 AD3d 1178, 1179).

     We have reviewed defendant’s remaining challenges to the PSR and
conclude that they are without merit.




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
