People v. Hunter

—Judgment, Supreme Court, Bronx County (William H. Wallace, III, J.), rendered September 10, 1991, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a persistent felony offender, to 15 years to life, unanimously modified, on the law, to vacate the sentence and the matter is remanded for a new persistent felony offender proceeding, and otherwise affirmed.

Since defendant made no explicit request to submit unauthorized use of a vehicle in the third degree (Penal Law § 165.05 [1]) as a lesser included offense of grand larceny in the fourth degree (vehicular larceny under Penal Law § 155.30 [8]), 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 [3] [b]; 300.50 [1]-[3]) preclude any finding of error in this regard (People v Douglas, 194 AD2d 408 , 409, lv denied 82 NY2d 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 NY2d 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 NY2d 424 , 427-428).

We perceive no constitutional infirmity in the prompt on-the-scene showup (People v Duuvon, 77 NY2d 541 ).

However, as in People v Wilson ( 64 AD2d 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.