PEOPLE v. DAVIS

The court properly exercised its discretion in resentencing defendant without the aid of an updated presentence report. Upon defendant's appeal from his original conviction of first-degree robbery and sentence of 18 years, this Court concluded that the affirmative defense under Penal Law § 160.15 (4) should have been charged, and that "[u]nder the circumstances of the case, reduction of the conviction to robbery in the second degree with a remand for resentencing would provide an appropriate remedy for the charging error" ( 3 AD3d 339, 339, lv denied 2 NY3d 761). Defendant was continuously incarcerated, and it was well within the resentencing court's discretion to decide that it did not need additional information about defendant's conduct in prison ( see People v. Kuey, 83 NY2d 278, 282-283). We have considered and rejected defendant's remaining claims.