People v Muschetta (Alvin)

[*1] People v Muschetta (Alvin) 2004 NY Slip Op 50445(U) Decided on May 20, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 20, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
NO. 2002-1254 K CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

ALVIN MUSCHETTA, a/k/a ALVIN CLARK, Appellant.

Appeal by defendant from an amended judgment of the Criminal Court, Kings County (J. Burke, J.), rendered May 28, 2002, finding him in violation of his conditional discharge and resentencing him to one year's incarceration.

Amended judgment unanimously reversed as a matter of discretion in the interest of justice and accusatory instrument dismissed.

Absent the imposition of the minimum sentence or an express waiver, a court must obtain and consider an updated presentence report or its functional equivalent before imposing sentence People v Bennett, 269 AD2d 401 [2000]; People v Figueroa, 227 AD2d 501 [1996]). Although a defendant's failure to object to the resentencing or to move to vacate the sentence on that ground has been construed to waive the issue for appellate review (People v Freeman, 2 AD3d 648, 649 [2003]; People v May, 202 AD2d 755 [1994]; see also People v Segar, 295 AD2d 628, 629 [2002] [waiver found where defendant "consented, through counsel, to proceed to sentencing without an updated report"]) here, the updated presentence report waiver form signed by defense counsel also bears the notation that defendant "refused to sign" it, an affirmative act of rejection of the form's import, and we will not infer therefrom a consent "through counsel" (id.) merely because counsel signed the form. In view of the foregoing, as a matter of discretion in the interest of justice, we dismiss the accusatory instrument.
Decision Date: May 20, 2004