Opinion
March 21, 1994
Appeal from the County Court, Suffolk County (Tisch, J.).
Ordered that the amended sentence is reversed, on the law, and the matter is remitted to the County Court, Suffolk County, for resentencing in accordance herewith.
"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 Cintron, 191 A.D.2d 705). The court did not have an updated presentence report or its functional equivalent when it imposed the amended sentence. Since the defendant did not expressly waive the report and the sentence was not the minimum that could be imposed, the matter must be remitted to the County Court, Suffolk County for resentencing (see, People v Cintron, supra). In light of this determination, it is unnecessary to address the defendant's argument that the amended sentence was harsh and excessive (see, People v. Simpson, 179 A.D.2d 831). Mangano, P.J., Bracken, Lawrence, Altman and Friedmann, JJ., concur.