People v. Difo (185 A.D.2d 148, 1992)

-Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered July 5, 1990, resentencing defendant, upon his violation of probation, to a term of imprisonment of lVi to 4 V2 years to run consecutive to a term of imprisonment of 5 to 10 years imposed May 5, 1988 on an unrelated charge, unanimously reversed, on the law, the judgment of resentence vacated, and the matter remanded for resentencing pursuant to an updated pre-sentence report. Appeal from the order of the same court and Justice rendered November 14, 1990, which denied defendant’s motion to vacate the resentence pursuant to CPL 440.20, unanimously dismissed as subsumed with the appeal from the judgment.

As the People concede, defendant should not have been resentenced without benefit of an updated pre-sentence report (CPL 390.20 [1]; People v Washington, 172 AD2d 460). Concur —Rosenberger, J. P., Ellerin and Asch, JJ.

Kupferman, and Ross, JJ.,

concur in a memorandum by Kupferman, J., as follows: Once again, we have a situation where it is contended that there should be an updated presentence report, the defendant having been continuously incarcerated.

The People commendably indicate that they are constrained, as I am, to follow the decision of this court that requires such report, even though only time in prison would be covered.

It must be reiterated that this is an unjustified burden placed on the criminal justice system (see, People v Washington, 172 AD2d 460, 461 [Kupferman, J., dissenting]).