Opinion
May 30, 1989
Appeal from the Supreme Court, New York County (Robert Haft, J.).
On defendant's previous appeal from the instant robbery conviction, we determined that he had been improperly sentenced as a second violent felony offender, and remanded for resentencing as a second felony offender (People v Smith, 129 A.D.2d 517 [1st Dept 1987]).
Based upon our review of the record, we find, and the People concede, there is no evidence that when defendant was resentenced, Criminal Term had before it an updated presentence report. Since defendant was resentenced on July 14, 1987, which was almost three years after the date he was originally sentenced, we find, and the People concede, that Criminal Term erred in resentencing defendant without the benefit of an updated presentence report, prepared in accordance with CPL 390.20(1) (People v Saez, 121 A.D.2d 947 [1st Dept 1986], affd 69 N.Y.2d 802; People v Laster, 140 A.D.2d 233 [1st Dept 1988]; People v Roberts, 143 A.D.2d 560 [1st Dept 1988]). In People v Saez (supra, at 948), we held, in pertinent part, "CPL 390.20 (1) mandates, and the public policy of our State requires, a current presentence report before sentence is imposed". Accordingly, we modify the judgment to the extent of vacating the sentences, and remand for resentencing.
We have considered the defendant's contention that the sentences imposed were excessive, and find it to be without merit.
Concur — Ross, Milonas, Wallach and Rubin, JJ.
Kupferman, J.P., concurs on constraint of People v Laster ( 140 A.D.2d 233).