People v. Ruiz

157 A.D.2d 525, 550 N.Y.S.2d 827, 1990 N.Y. App. Div. LEXIS 298

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1990
• Status: Published

Opinion

—Judgment of resentence, Supreme Court, Bronx County (Robert Seewald, J.), rendered April 7, 1988, sentencing defendant to 7 to 14 years’ imprisonment upon a modified and reduced judgment convicting him of burglary in the second degree, unanimously modified, on the law, to vacate the sentence imposed and remand for the preparation of an updated presentence report in accordance with CPL 390.20 (1) and for resentencing, and otherwise affirmed.

This case was remanded to Supreme Court for resentencing following our modification of the September 29,1986 judgment which convicted defendant, following a jury trial, of first degree burglary, to the extent of reducing the conviction to second degree burglary. (People v Ruiz, 136 AD2d 493.) At the resentencing proceeding conducted April 7, 1988, the court had before it only the original presentence report, prepared nearly two years earlier, in August 1986. As the People concede, this was error, because CPL 390.20 (1) mandates that the sentencing court must order a presentence investigation of the defendant and may not pronounce sentence until it receives a written report of the investigation; the presentence report herein did not contain current, updated information pertinent to the imposition of a proper sentence (People v Laster, 140 AD2d 233).

Accordingly, we vacate the sentence and remand for the preparation of an updated presentence report and resentencing. Concur—Carro, Asch, Kassal and Smith, JJ.

Kupferman, J. P., concurs on constraint of People v Laster (140 AD2d 233).