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.)