People v. Dorino

Appellate Division of the Supreme Court of New York

People v. Dorino

200 A.D.2d 632, 606 N.Y.S.2d 741

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 18, 1994

StatusPublished

Cited by4 cases

This text of 200 A.D.2d 632 (People v. Dorino) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Dorino, 200 A.D.2d 632, 606 N.Y.S.2d 741 (N.Y. Ct. App. 1994).

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Opinion

—Appeal by the defendant, as limited by his motion, from an amended sentence of the Supreme Court, Kings County (Demarest, J.), imposed January 26, 1993, revoking a sentence of conditional discharge previously imposed by the same court, upon a finding that he had violated the conditions thereof, and imposing a definite sentence of one year imprisonment upon his previous conviction of attempted riot in the first degree.

Ordered that the amended sentence is reversed, on the law and as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.

Notwithstanding that certain limited information was disclosed to the sentencing court during the hearing on the charge that the defendant had violated a sentence of conditional discharge previously imposed, absent a waiver or the imposition of the minimum sentence, the court was without [633]*633authority to impose an amended sentence based upon the defendant’s violation of the conditions of his discharge without ordering the preparation of an up-to-date presentence report (see, People v Cannon, 191 AD2d 452; People v Simpson, 179 AD2d 831; People v Roman, 153 AD2d 594). Although the defendant waived the preparation of a pre-sentence report prior to the imposition of the original sentence of conditional discharge, that waiver did not extend to the amended sentence since no further waiver was made on the record (CPL 390.20 [4]; People v Cintron, 191 AD2d 705).

Furthermore, although not preserved by a timely objection (see, People v Green, 54 NY2d 878), there is merit to the defendant’s contention that the court failed to ask him whether he wished to make a statement prior to imposing a one-year sentence of imprisonment (CPL 380.50 [1]; see, People v Roman, supra; People v Perez, 135 AD2d 582, 584). Accordingly, upon resentencing, the court should not repeat this error.

We reject the defendant’s contention that the court failed to exercise its discretion in arriving at the sentence imposed. The record reflects the court’s findings and its reasons for imposing a definite one-year term of imprisonment. However, absent a probation report, we cannot adequately review whether the court providently exercised its discretion. Accordingly, we make no finding as to the propriety of the sentence imposed. Mangano, P. J., Bracken, Miller, O’Brien and Pizzuto, JJ., concur.

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—Appeal by the defendant, as limited by his motion, from an amended sentence of the Supreme Court, Kings County (Demarest, J.), imposed January 26, 1993, revoking a sentence of conditional discharge previously imposed by the same court, upon a finding that he had violated the conditions thereof, and imposing a definite sentence of one year imprisonment upon his previous conviction of attempted riot in the first degree.

Ordered that the amended sentence is reversed, on the law and as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.

Notwithstanding that certain limited information was disclosed to the sentencing court during the hearing on the charge that the defendant had violated a sentence of conditional discharge previously imposed, absent a waiver or the imposition of the minimum sentence, the court was without [633]*633authority to impose an amended sentence based upon the defendant’s violation of the conditions of his discharge without ordering the preparation of an up-to-date presentence report (see, People v Cannon, 191 AD2d 452; People v Simpson, 179 AD2d 831; People v Roman, 153 AD2d 594). Although the defendant waived the preparation of a pre-sentence report prior to the imposition of the original sentence of conditional discharge, that waiver did not extend to the amended sentence since no further waiver was made on the record (CPL 390.20 [4]; People v Cintron, 191 AD2d 705).

Furthermore, although not preserved by a timely objection (see, People v Green, 54 NY2d 878), there is merit to the defendant’s contention that the court failed to ask him whether he wished to make a statement prior to imposing a one-year sentence of imprisonment (CPL 380.50 [1]; see, People v Roman, supra; People v Perez, 135 AD2d 582, 584). Accordingly, upon resentencing, the court should not repeat this error.

We reject the defendant’s contention that the court failed to exercise its discretion in arriving at the sentence imposed. The record reflects the court’s findings and its reasons for imposing a definite one-year term of imprisonment. However, absent a probation report, we cannot adequately review whether the court providently exercised its discretion. Accordingly, we make no finding as to the propriety of the sentence imposed. Mangano, P. J., Bracken, Miller, O’Brien and Pizzuto, JJ., concur.

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200 A.D.2d 632, 606 N.Y.S.2d 741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dorino-nyappdiv-1994.

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