Opinion
December 1, 1994
Appeal from the Supreme Court, Bronx County (William H. Wallace, III, J.).
Since defendant made no explicit request to submit unauthorized use of a vehicle in the third degree (Penal Law § 165.05) as a lesser included offense of grand larceny in the fourth degree (vehicular larceny under Penal Law § 155.30), nor registered any kind of protest to the court's failure to submit the separate unauthorized use count already contained in the indictment, the applicable statutes (CPL 300.40 [b]; 300.50 [1]-[3]) preclude any finding of error in this regard (People v Douglas, 194 A.D.2d 408, 409, lv denied 82 N.Y.2d 717). Absent an explicit request or exception, it is irrelevant that counsel may have "alluded to this point during his colloquy with the Trial Judge" (People v Borrello, 52 N.Y.2d 952, 953).
Defendant's post-summation request for a missing witness charge was properly denied. Aside from being untimely and largely dehors the record, this request failed to show that the uncalled officer could provide noncumulative testimony (People v Gonzalez, 68 N.Y.2d 424, 427-428).
We perceive no constitutional infirmity in the prompt on-the-scene showup (People v Duuvon, 77 N.Y.2d 541).
However, as in People v Wilson ( 64 A.D.2d 782), "there was a complete failure by the trial court to follow the procedures mandated by CPL 400.20 in imposing sentence as a persistent felony offender." Accordingly, the sentence must be vacated and the matter remanded for new persistent felony offender proceedings. We express no view as to whether a persistent felony offender sentence is appropriate in this case.
Concur — Ellerin, J.P., Wallach, Asch, Nardelli and Tom, JJ.