Opinion
December 2, 1991
Appeal from the Supreme Court, Queens County (Rotker, J.).
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 2 1/3 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 A.D.2d 225; People v Smith, 150 A.D.2d 313; People v Martinez, 118 A.D.2d 661; cf., People v Rodney E., 77 N.Y.2d 672). Mangano, P.J., Kunzeman, Harwood, Lawrence and Miller, JJ., concur.