Summary
holding that PSI reports that were two years old and eight years old were inadequate because they lacked current information
Summary of this case from Ware v. StateOpinion
May 19, 1988
Appeal from the Supreme Court, New York County (Torres, J.).
On defendant's previous appeal from this robbery conviction, we had determined that defendant was improperly sentenced as a persistent violent felony offender, and remanded for resentencing as a second violent felony offender. ( 118 A.D.2d 509.)
When defendant appeared for resentencing on April 10, 1986, the trial court had before it only the original presentence report prepared over two years earlier, in 1984, and an even earlier 1978 presentence report.
CPL 390.20 (1) mandates that the sentencing court must order a presentence investigation of the defendant and that it may not pronounce sentence until it has received a written report of such investigation. (See also, People v Selikoff, 35 N.Y.2d 227, 238.)
Here, the court had before it a presentence report more than two years old when it sentenced the defendant. As we held in People v Saez ( 121 A.D.2d 947, affd 69 N.Y.2d 802), a presentence report is inadequate unless it contains current, updated information pertinent to the imposition of a proper sentence. Accordingly, on authority of Saez, we must vacate the sentence and remand for the preparation of an updated report and resentencing.
Concur — Ross, Carro, Rosenberger and Ellerin, JJ.
Once again, an unjustified burden is placed on the criminal justice system.
See, e.g., People v Hockett, 121 A.D.2d 878, 879 (dissent), after remand 128 A.D.2d 393, 394 (dissent); People v Boulware, 130 A.D.2d 370, 375 (dissent), appeal dismissed 70 N.Y.2d 994; People v Miller, 130 A.D.2d 449, 451 (dissent); People v Mosley, 136 A.D.2d 500, 501 (dissent).
The defendant has been continually incarcerated, and therefore any presentence report could only cover his time in prison. Accordingly, People v Saez ( 121 A.D.2d 947, affd 69 N.Y.2d 802) is not authority because in that case there was a period of time during which the defendant was released.
If we are simply to determine how the defendant has been conducting himself while in prison, it would be for the purpose of "good behavior time" (see, Penal Law § 70.30), which is not our function. This defendant is being sentenced for his original crime, and the fact that we directed resentencing on a technicality should not change the approach. I would affirm.