Opinion
January 27, 1992
Appeal from the Supreme Court, Kings County (Douglass, J.).
Ordered that the amended sentence is reversed, on the law and as a matter of discretion in the interest of justice, and that the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
Absent the imposition of the minimum sentence (see, People v Navarro, 91 A.D.2d 618), or an express waiver as part of a negotiated plea bargain (see, People v. Dowdell, 72 A.D.2d 622; People ex rel. Seaman v. Warden, 53 A.D.2d 848), a court which is about to impose a new sentence based upon the defendant's violation of probation imposed under an earlier sentence must obtain and consider an updated presentence report (see, People v Santana, 175 A.D.2d 296; People v. Roman, 153 A.D.2d 594; People v Sanchez, 143 A.D.2d 377; People v. Pons, 134 A.D.2d 378; People v Rice, 125 A.D.2d 611; People v. Randolphe, 114 A.D.2d 426; People v. Jackson, 106 A.D.2d 93; People v. Hayes, 101 A.D.2d 893). In People v. Roman (supra), and People v. Rice (supra), this rule was applied even where, as here, the adjudication of the defendant as a violator of probation had been preceded by a hearing (cf., People v. Gilyard, 161 A.D.2d 464; People v Jackson, supra [violation of probation report may, under some circumstances, take the place of updated presentence report]). Since only the violation of probation report and no other functional equivalent of an updated presentence report was before the court in the present case, the matter must be remitted to the Supreme Court, Kings County, for resentencing (People v. Roman, supra). In light of this determination, we need not address the defendant's argument concerning the alleged harshness of the sentence imposed. Mangano, P.J., Bracken, Eiber, O'Brien and Ritter, JJ., concur.