Opinion
April 14, 1989
Appeal from the Supreme Court, Erie County, Kasler, J.
Present — Callahan, J.P., Doerr, Boomer, Pine and Davis, JJ.
Judgment unanimously modified on the law by vacating the sentence imposed thereon and as modified affirmed and defendant remanded to Supreme Court, Erie County, for resentencing, in accordance with the following memorandum: Based upon the record in its entirety, we find defendant's waiver of the assistance of counsel and his waiver of a second felony offender hearing to have been knowing and intelligent. The court erred, however, when it resentenced defendant without the benefit of an updated presentence report, because almost two years had elapsed between defendant's sentencing and his resentencing pursuant to a remand by this court (see, People v. Lucas, 119 A.D.2d 700, lv denied 68 N.Y.2d 670; People v. Bellis, 115 A.D.2d 237; People v. O'Dell, 105 A.D.2d 987; People v. Hayes, 101 A.D.2d 893; cf., People v White, 115 A.D.2d 313).