People v. Bolten

—Appeal by the defendant, as limited by his motion, from an amended sentence of the County Court, Nassau County (Baker, J.), imposed April 15, 1992, revoking a sentence of probation previously imposed by the County Court, Greene County (Battiste, J.), upon a finding that the defendant had violated a condition thereof, the amended sentence being an indeterminate term of one and one-third to four years of imprisonment upon his previous conviction of driving while intoxicated as a felony. 473 Ordered that the amended sentence is reversed, on the law, and as a matter of discretion in the interest of justice, and the matter is remitted to the County Court, Nassau County, for resentencing in accordance herewith. The defendant contends that his amended sentence should be reversed because the County Court, Nassau County, failed to order or consider an updated presentence report before revoking the sentence of probation previously imposed upon him for driving while intoxicated as a felony. We agree. "Absent the imposition of the minimum sentence * * * or an express waiver as part of a negotiated [guilty] plea * * * 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” (People v Cannon, 191 AD2d 452; see, People v Dorino, 200 AD2d 632; People v Cintron, 191 AD2d 705; People v Simpson, 179 AD2d 831). The requirement that an updated report be prepared and considered applies even where, as here, "the adjudication of the defendant as a violator of probation has been preceded by a hearing” (People v Cannon, supra, at 452; People v Simpson, supra). Since neither an updated presentence report nor the functional equivalent thereof was before the court when it imposed its amended sentence, the matter must be remitted to the County Court, Nassau County, for resentencing (see, People v Cintron, supra; People v Cannon, supra; People v Durant, 186 AD2d 673). In light of our determination, we do not address the defendant’s argument concerning the alleged excessiveness of the amended sentence imposed. Mangano, P. J., Rosenblatt, Miller and Krausman, JJ., concur.