PEOPLE v. NAZARIO

Defendant's claim that he was sentenced without the benefit of a pre-sentence report, as required by CPL 390.20 (1), is based solely on the absence of any reference to this report in the record. Such absence is insufficient to rebut the presumption of regularity accorded to judicial proceedings ( People v. Kalakowski, 120 A.D.2d 763, lv denied 68 N.Y.2d 669). A pre-sentence report was ordered by the court and prepared by the Department of Probation prior to the sentencing date, and it is presumed that defendant was lawfully sentenced on the basis of this report ( People v. Martinez, 237 A.D.2d 122, lv denied 90 N.Y.2d 860).

Concur — Sullivan, J. P., Nardelli, Rubin, Tom and Mazzarelli, JJ.