People v. Nowak

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 AD2d 700, Iv denied 68 NY2d 670; People v Beilis, 115 AD2d 237; People v O’Dell, 105 AD2d 987; People v Hayes, 101 AD2d 893; cf, People v White, 115 AD2d 313). (Appeal from judgment of Supreme Court, Erie County, Kasler, J.— grand larceny, second degree, and another charge.) Present— Callahan, J. P., Doerr, Boomer, Pine and Davis, JJ.