People v. Cruz

265 A.D.2d 488, 697 N.Y.S.2d 632, 1999 N.Y. App. Div. LEXIS 10396

Opinion

—Appeal by the defendant, as limited by his motion, from an amended sentence of the Supreme Court, Kings County (Vaughan, J.), rendered April 16, 1997, revoking a sentence of probation previously imposed by the same court (Slavin, J.), upon a finding that he had violated a condition thereof, after a hearing, and imposing a sentence of imprisonment upon his previous conviction of criminal sale of a controlled substance in the fourth degree.

Ordered that the amended sentence is reversed, on the law, and the matter is remitted to the Supreme Court, Kangs County, for resentencing in accordance herewith.

Absent the imposition of the minimum sentence or an express waiver of the presentence report requirement, a court which imposes a new sentence based upon the defendant’s violation of a condition of probation must obtain and consider an updated presentence report or its functional equivalent (see, People v Figueroa, 227 AD2d 501; People v Cannon, 208 AD2d 942). There is no indication in the record that the court had before it either an updated presentence report or its functional equivalent.

In light of our determination, it is unnecessary to address the defendant’s remaining contentions. Mangano, P. J., Bracken, Altman, McGinity and H. Miller, JJ., concur.