Opinion
CR4720.
Decided February 24, 2004.
Eric J. Adler, Esq., Monticello, N.Y., Attorney for Defendant.
Hon. Stephen F. Lungen, Sullivan County District Attorney, Sullivan County Courthouse, Monticello, N.Y., By: Joey Z. Drillings, ADA, of counsel Attorney for the People.
This matter comes on by appeal from the Town of Fallsburg Justice Court.
The appeal is fully submitted.
This Court has stayed the sentencing hereinpending this appeal decision.
Defendant was sentence to three years probation in regard to his conviction of possession of a controlled substance in the seventh degree in January, 2001.
After serving one and one-half years of said probation he was violated. Among the allegations were that the defendant was again arrested on a drug charge, he was failed to follow his treatment plan and was eventually dismissed from inhouse rehab, he failed to report to probation regularly and finally, after being thrown out of rehab, failed to report to probation completely.
After a hearing in August, 2003, defendant was found guilty of violation of probation and immediately thereon was sentenced to one year in the Sullivan County Jail.
The defendant argues herein that his sentence was illegal as the judge did not order a Pre-sentence Investigation report (PSI) and that his one year sentence was harsh and excessive.
The People counter that the defendant did not object to be sentenced without a PSI, thus, waiving a PSI and that the sentence was a legal sentence for the charge and was not excessive.
The interesting fact herein is that the defendant was originally sentenced in January, 2001 to three years probation without a PSI either. Thus, the sentencing court, not only did not order a PSI on the violation of probation finding but could not have order an updated PSI because there was never an original PSI.
A court may sentence a defendant without obtaining an updated PSI when it has before it adequate facts provided through the violation and hearing process that is equivalent to an updated PSI. People v. Orlowski , 292 AD2d 819 (4th Dept., 2002).
Here, however, there was never an initial PSI to update.
This Court finds that the trial court should have ordered a PSI prior to sentencing the defendant herein and failure to do so mandates that the sentence be vacated and returned to the justice court for re-sentencing.
This Court does not reach issue of whether the one year sentence was harsh or excessive.
Based upon the above, it is
ORDERED, that the sentence herein is vacated, and it is further
ORDERED, that this matter is returned to the Town of Fallsburg Justice Court for re-sentence, and it is further
ORDERED, that the stay shall continue until five days subsequent to the re-sentencing.
This shall constitute the Decision and Order of this Court.