People v. Robinson

Appeal by the defendant from an amended sentence of the Supreme Court, Queens County (Rotker, J.), imposed May 23, 1990, revoking a sentence of probation imposed by the same court upon a finding that she had violated a condition thereof, upon her plea of guilty, and imposing a sentence of imprisonment upon her previous conviction of assault in the second degree.

Ordered that the amended sentence is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for resentencing.

On January 9, 1987, following her conviction of assault in the second degree, the defendant was sentenced to five years probation. On November 1, 1989, she was charged with violation of probation. On November 15,1989, she pleaded guilty to violating her probation. That day, the court restored the defendant to probation, postponed sentencing for six months, and instructed the defendant that she would avoid incarceration if she appeared at sentencing and complied with other enumerated conditions. When the defendant failed to appear for sentencing on May 23, 1990, the court immediately revoked probation and sentenced her in absentia to an indeterminate term of 2Vs to 7 years imprisonment; it did so, however, without the benefit of an updated presentencing report. On July 11, 1990, the defendant appeared before the court and the sentence was executed.

Under the circumstances, the court should have ordered and considered an updated presentence report prior to imposing the amended sentence (see, People v Gordon, 155 AD2d 225; People v Smith, 150 AD2d 313; People v Martinez, 118 AD2d 661; cf., People v Rodney E., 77 NY2d 672). Mangano, P. J., Kunzeman, Harwood, Lawrence and Miller, JJ., concur.