PEOPLE v. KLINKOWSKI

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Roger KLINKOWSKI, Defendant-Appellant.

Decided: March 21, 2001

PRESENT:  GREEN, J.P., WISNER, HURLBUTT and BURNS, JJ. Gerald T. Barth, for defendant-appellant. James P. Maxwell, for plaintiff-respondent.

Contrary to the contention of defendant, the evidence is legally sufficient to support the determination that he violated the conditions of his probation by contacting the victim in December 1998 and January 1999.   The credibility of the victim was an issue for County Court to resolve (see, People v. Mitchell, 201 A.D.2d 507, 508, 607 N.Y.S.2d 417).   The court erred, however, in sentencing defendant to prison without the benefit of an updated presentence investigation report covering the 56 months during which defendant was on probation (see, CPL 390.20[1] ).   Although defendant did not request an updated report, we conclude that, without one, the court did not have the information required to perform its sentencing function (cf., People v. Perry, 278 A.D.2d 933, 718 N.Y.S.2d 768).   We therefore modify the judgment by vacating the sentence, and we remit the matter to Onondaga County Court for resentencing after preparation and review of an updated presentence investigation report.   The contention of defendant that the court erred in failing to provide him with a copy of the conditions of probation at the time of his sentencing in 1994 is not properly before us (see, People v. McMillan, 228 A.D.2d 166, 643 N.Y.S.2d 984, lv. denied 88 N.Y.2d 1070, 651 N.Y.S.2d 414, 674 N.E.2d 344;  People v. Lugo, 176 A.D.2d 177, 178, 574 N.Y.S.2d 306).

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Onondaga County Court for resentencing.

MEMORANDUM: