People v. Santiago

187 A.D.2d 384, 590 N.Y.S.2d 200, 1992 N.Y. App. Div. LEXIS 13110

Opinion

Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered January 2, 1992, convicting defendant, upon his plea of guilty, of violation of probation, revoking the sentence of probation rendered November 7, 1988, and resentencing defendant to concurrent terms of 2 to 6 years and 1 to 3 years, unanimously affirmed. This case is remitted to Supreme Court for further proceedings pursuant to CPL 460.50 (5).

The court had before it the original presentence report, the updated supplementary report and the violation of probation report (CPL 390.20 [1]; see, People v Selikoff, 35 NY2d 227, 238, cert denied 419 US 1122). Where a defendant is sentenced for violation of probation, the presentence report upon which the probationary sentence was based must ordinarily be updated to reflect any changes in the defendant’s circumstances relevant to the new sentence. (People v Gordon, 155 AD2d 225, 225-226.) New matter having been asserted by defense counsel and accepted as true by the court, the " ' "functional equivalent” ’ ” of an updated presentence report was before the court (People v Gilyard, 161 AD2d 464; see, People v Pagan, 172 AD2d 233, 234, lv denied 78 NY2d 925). The sentences imposed are not excessive in view of defendant’s lengthy criminal record. Concur—Sullivan, J. P., Milonas, Ellerin and Kassal, JJ.