#### The People of the State of New York, Respondent, v Herbert Washington, Appellant.

Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered March 6, 1987, which resentenced defendant to concurrent *461indeterminate prison terms of from 12 to 24 years and 7 to 14 years, upon his conviction of robbery in the first and second degrees (Penal Law § 160.15 [2]; § 160.10 [1]), is modified, on the law, to vacate the sentence and remand for the preparation of an updated pre-sentence report, in accordance with CPL 390.20 (1), and for resentencing, and otherwise affirmed.

Following a jury trial, defendant was convicted on July 16, 1982, of robbery in the first and second degrees and sentenced, on February 4, 1983, as a persistent violent felony offender, to concurrent indeterminate prison terms of from 12 years to life and 8 years to life, respectively. By decision dated December 23, 1986, this Court held that defendant had been improperly adjudicated a persistent violent felony offender, and accordingly vacated the sentence and remanded for resentencing. *(People v Washington,*125 AD2d 254.)

On March 6, 1987, the trial court imposed sentence without benefit of an updated pre-sentence report. As conceded by the People, this was error requiring vacatur of the sentence and remand for re-sentence. (CPL 390.20 [1]; *People v Selikoff,*35 NY2d 227, 238; *People v Laster,*140 AD2d 233; *People v Ruiz,*157 AD2d 525.)

In light of this determination, we do not reach defendant’s remaining argument on appeal. Concur—Sullivan, J. P., Rosenberger, Asch and Kassal, JJ.

Kupferman, J.,

dissents in a memorandum as follows: The "concession” by the People is based on an erroneous interpretation by this Court of CPL 390.20 (1). *People v Selikoff*(35 NY2d 227, 238) is not in point on the issue before us.

The defendant having at all pertinent times been incarcerated, there is no need for a further presentence report.

As I stated in my dissent in *People v Laster*(140 AD2d 233, 234):

> "Once again, an unjustified burden is placed on the criminal justice system.

> "The defendant has been continually incarcerated, and therefore any presentence report could only cover his time in prison. Accordingly, *People v Saez*(121 AD2d 947, *affd*69 NY2d 802) is not authority because in that case there was a period of time during which the defendant was released.

> "If we are simply to determine how the defendant has been conducting himself while in prison, it would be for the purpose of 'good behavior time’ *(see,*Penal Law § 70.30 [4]), which is not our function. This defendant is being sentenced for his *462original crime, and the fact that we directed resentencing on a technicality should not change the approach. I would affirm.”

Thereafter, in a similar situation in *People v Ruiz*(157 AD2d 525, 526), I concurred on constraint of *People v Laster (supra),*which concurrence I now perceive to have been error on my part.

The Court of Appeals should make a definitive determination on this question. With the already heavy burden on the investigative services, to slavishly mandate this additional function is wrong.

Moreover, in this matter the court had a de facto updated presentence report based on letters from the defendant and the colloquy at resentencing. *(People v Allen W.,*129 AD2d 867, 868.)