Opinion
August 7, 1989
Appeal from the Supreme Court, Kings County (Pesce, J.).
Ordered that the amended judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the amended sentence imposed; as so modified, the amended judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
Absent the imposition of the minimum sentence (People v Navarro, 91 A.D.2d 618) or a bargained sentence and express waiver (People v. Dowdell, 72 A.D.2d 622; People ex rel. Seaman v Warden, 53 A.D.2d 848), a court imposing a sentence of imprisonment upon finding that the defendant violated the terms of probation must obtain and consider an updated presentence report (see, CPL 390.20; People v. Jackson, 106 A.D.2d 93; People v. Hayes, 101 A.D.2d 893). Although a violation packet prepared by the Probation Department may suffice as the functional equivalent of an updated report, provided it informs the court of all "`relevant changes which may have occurred since preparation of the original presentencing report'" (People v Jackson, supra, at 98, quoting from People v. Halaby, 77 A.D.2d 717, 718), the record on this appeal lacks an express indication that such a packet was in fact before the court or that the court considered it. Consequently, the amended sentence of a term of imprisonment must be reversed (see, People v. Jackson, supra).
Furthermore, the court erred in failing to ask the defendant as required by CPL 380.50 whether he wished to make a statement in his own behalf prior to resentencing him (see, People v. Schiavone, 42 A.D.2d 738). Although this error was not preserved for appellate review (see, People v. Green, 54 N.Y.2d 878; People v. Regan, 88 A.D.2d 664), under the circumstances of this case, we have exercised our discretionary power to review that error in the interest of justice.
Accordingly, the matter is remitted to the Supreme Court for the purpose of resentencing the defendant based upon an updated presentence report and after compliance with CPL 380.50. Since our decision will require that the defendant be resentenced, we do not reach the issue of whether the imposition of an indeterminate term of 2 1/3 to 7 years' imprisonment was excessive (see, People v. Halaby, 77 A.D.2d 717, supra).
We have reviewed the defendant's remaining contentions and find them to be without merit. Lawrence, J.P., Kunzeman, Rubin and Kooper, JJ., concur.