Opinion
March 1, 1993
Appeal from the County Court, Nassau County (Wexner, J.).
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 County Court, Nassau County, for resentencing in accordance herewith.
Absent the imposition of the minimum sentence (see, People v Navarro, 91 A.D.2d 618), or an express waiver as part of a negotiated plea (see, People v. Dowdell, 72 A.D.2d 622), a court which is about to impose a new sentence based upon the defendant's violation of probation imposed under an earlier sentence must obtain and consider an updated presentence report (People v. Simpson, 179 A.D.2d 831; People v. Roman, 153 A.D.2d 594; People v. Jackson, 106 A.D.2d 93). This rule applies even where, as here, the adjudication of the defendant as a violator of probation has been preceded by a hearing (see, People v Simpson, 179 A.D.2d 831, supra). Since neither an updated presentence report nor the functional equivalent thereof was before the court, the matter must be remitted to the County Court, Nassau County, for resentencing (see, People v Jackson, 106 A.D.2d 93, supra). In light of this determination, we do not address the appellant's argument concerning the alleged harshness of the amended sentence imposed. Bracken, J.P., Lawrence, Miller, Copertino and Santucci, JJ., concur.