Opinion
November 21, 1984
Appeal from the County Court of Columbia County (Zittell, J.).
After defendant's motion to set aside his sentence was granted by County Court, it was mandatory that defendant be resentenced in accordance with the law (CPL 440.20, subd 4). The law requires that before sentence can be pronounced for a felony conviction, such as defendant's, a written presentence report must be received by the court (CPL 390.20, subd 1). Thus, before defendant could be resentenced, it was necessary for County Court to receive such a report. Over a year had elapsed since the preparation of the presentence report used for defendant's original sentencing and an updated report was therefore necessary (see, e.g., People v Richard MM., 97 A.D.2d 885). Accordingly, the failure of County Court to receive an updated presentence report prior to resentencing requires that the sentence be vacated and the case remitted for resentencing after the preparation of an updated presentence report and receipt of that report by County Court.
Judgment modified, on the law, by vacating the sentence, and matter remitted to the County Court of Columbia County for resentencing in accordance herewith, and, as so modified, affirmed. Main, J.P., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.