People v. Gilyard

161 A.D.2d 464, 555 N.Y.S.2d 737, 1990 N.Y. App. Div. LEXIS 6032

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1990
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Harold Roth-wax, J.), rendered March 12, 1987, which resentenced defendant on his violation of probation for attempted robbery in the second degree to a term of imprisonment of from 1 to 3 years to run consecutively to an intervening conviction, reversed, on the law, and the matter remanded to the sentencing court to either reimpose the amended sentence by indicating, on the record, that documents prepared for the violation of probation were considered by him initially, or to resentence defendant based upon an updated presentence report.

Although the court should review an updated presentence report before resentencing a defendant on a violation of probation, documents which inform the court of all relevant changes in the defendant’s status may substitute as the " 'functional equivalent’ ” of a presentence report (People v Sanchez, 143 AD2d 377, 378, lv denied 73 NY2d 790; People v Jackson, 106 AD2d 93). Only a few months before defendant was sentenced on his violation of probation, the Probation Department prepared a violation of probation report and attached a memorandum including relevant information on defendant’s status. Since the record does not unequivocally establish that these items were presented to and considered by the resentencing court, they cannot substitute as the " 'functional equivalent’ ” of an updated presentence report (People v Sanchez, supra, at 378; People v Jackson, supra). Concur—Carro, Milonas, Kassal and Ellerin, JJ.