People v. Pearson 55 A.D.2d 1032

Appeal held and matter remitted to Supreme Court, Erie County, for consideration of defendant’s appellate counsel’s request for permission to examine the presentence report, in accordance with the following memorandum: The District Attorney concedes that in light of People v Rogers (54 AD2d 616) defendant’s appellate counsel is entitled to examine the presentence report. The concession implies that the facts in this case are the same as in Rogers where, in the discretion of the sentencing court, all of the presentence report had been released for defendant’s counsel to examine at sentencing. If that occurred in this case, People v Rogers (supra) applies, and the presentence report should be released to defendant’s appellate counsel for the purpose of preparing his brief on the appeal from the judgment of conviction and for argument. In case all of the presentence report was not released to defendant’s sentencing counsel, or if none of it was so released, the procedure outlined in People v Butler (54 AD2d 56) should be followed, to permit the sentencing court to exercise his discretion under CPL 390.50 (subd 2). Thereafter application may be made to restore the case to the calendar of this court for reargument. (Appeal from judgment of Erie Supreme Court — criminal possession controlled substance, third degree, etc.) Present — Marsh, P. J., Moule, Simons, Goldman

and Witmer, JJ.