People v. Figueroa

227 A.D.2d 501, 643 N.Y.S.2d 350, 1996 N.Y. App. Div. LEXIS 5066

Opinion

Appeal by the defendant, as limited by his brief, from an amended sentence of the Supreme Court, Kings County (Rappaport, J.), rendered November 18, 1994, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of attempted criminal possession of a controlled substance in the third degree.

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

It is a settled rule of the Appellate Division, Second Department, that absent the imposition of the minimum sentence or an express waiver of the presentence report requirement as part of a negotiated plea bargain, a court that is about to impose 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 Cannon, 208 AD2d 942).

This record fails to indicate that the sentencing court had before it either an updated presentence report or the functional equivalent thereof (see, People v Cannon, supra).

In view of our determination, there is no need to address the other contentions raised by the defendant. Mangano, P. J., Thompson, Florio and McGinity, JJ., concur.