People v. Bellis

115 A.D.2d 237, 496 N.Y.S.2d 144, 1985 N.Y. App. Div. LEXIS 54482

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1985
• Status: Published

Opinion

Judgment, insofar as appealed from, unanimously modified, on the law, by vacating the sentence imposed and, as modified, affirmed and matter remitted to Ontario County Court for resentencing, in accordance with the following memorandum: Before sentence is imposed following a felony conviction, the court must order a presentence investigation of the defendant and sentence may not be imposed until the court has received a written presentence report (CPL 390.20 [1]). In this case, the court erred in not ordering an updated presentence investigation of defendant upon finding that the defendant had violated the terms of his probation (People v Jackson, 106 AD2d 93; People v Stanton, 96 AD2d 652; People v Halaby, 77 AD2d 717), especially since over a year and a half had elapsed between preparation of defendant’s original presentence report and the time he was resentenced (see, People v Halaby, supra, p 718 [Kane, J., concurring]). The sentence must be vacated and the matter remitted to the sentencing court for resentencing based upon an updated presentence report.

In view of our decision herein, we do not reach the issue of whether the sentence imposed was excessive. (Appeal from judgment of Ontario County Court, Reed, J.—assault, second degree.) Present—Hancock, Jr., J. P., Doerr, Green, O’Donnell and Schnepp, JJ.