PEOPLE v. DE FAYETTE (2005)

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered April 7, 2003, upon a verdict convicting defendant of the crime of reckless endangerment in the first degree.

Defendant was indicted and charged with assault in the second degree and reckless endangerment in the first degree as a result of the victim's allegations that he beat her and attempted to smother her with a pillow.   Following a jury trial, defendant was found not guilty of assault in the second degree, but guilty of reckless endangerment in the first degree.   He was sentenced, as a second felony offender, to a prison term of 3 1/212 to 7 years, and now appeals.

 Defendant initially contends that he was denied the effective assistance of counsel because counsel failed to call certain witnesses as defendant had requested.   Inasmuch as counsel stated on the record that the decision not to call those witnesses was a tactical one, and defendant offers nothing to show that he was prejudiced thereby (see People v. Brewer, 266 A.D.2d 577, 578-579, 697 N.Y.S.2d 758 [1999] ), we disagree.   Our review of the representation in its totality leads us to conclude that defendant received a meaningful defense (see People v. McDonald, 255 A.D.2d 688, 689, 681 N.Y.S.2d 112 [1998] ).

 Defendant's claim that the verdict convicting him of reckless endangerment in the first degree was inconsistent with the verdict acquitting him of assault in the second degree is unpreserved since he failed to raise the issue at trial before the jury was discharged (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280 [1985];  People v. St. Paul, 3 A.D.3d 604, 605, 771 N.Y.S.2d 227 [2004], lv. denied 2 N.Y.3d 765, 778 N.Y.S.2d 783, 811 N.E.2d 45 [2004] ).   Nonetheless, were we to consider it, we would find it to be unavailing because the crimes of assault in the second degree and reckless endangerment in the first degree require different mental states (see Penal Law §§ 120.25, 120.05[2] ).   In our view, all that the acquittal on the assault count indicates is that the People failed to prove that defendant acted with intent to cause the victim physical injury.

 Defendant next contends that County Court committed error by admitting testimony by the victim's sister concerning defendant's prior assaultive behavior toward the victim.   The testimony of this witness helped to explain defendant's relationship with the victim and establish his intent and the absence of mistake or accident, and its probative value was not outweighed by its prejudicial effect (see People v. Luck, 294 A.D.2d 618, 620, 742 N.Y.S.2d 678 [2002], lv. denied 98 N.Y.2d 699, 747 N.Y.S.2d 417, 776 N.E.2d 6 [2002];  People v. Lotmore, 276 A.D.2d 901, 902, 715 N.Y.S.2d 94 [2000], lv. denied 96 N.Y.2d 736, 722 N.Y.S.2d 803, 745 N.E.2d 1026 [2001] ).   Upon review of the record, however, we find no indication that County Court gave any limiting instruction regarding the use of such evidence either when the testimony was given or in the court's final jury charge (see People v. Resek, 3 N.Y.3d 385, 389, 787 N.Y.S.2d 683, 821 N.E.2d 108 [2004];  People v. Greene, 306 A.D.2d 639, 642-643, 760 N.Y.S.2d 769 [2003], lv. denied 100 N.Y.2d 594, 766 N.Y.S.2d 170, 798 N.E.2d 354 [2003] ).   Nevertheless, defendant's failure to object to the court's omissions or request an appropriate jury charge renders this issue unpreserved for our review (see CPL 470.05[2];  People v. Wright, 5 A.D.3d 873, 876, 773 N.Y.S.2d 486 [2004], lv. denied 3 N.Y.3d 651, 782 N.Y.S.2d 422, 816 N.E.2d 212 [2004];  People v. Matthews, 221 A.D.2d 802, 802-803, 634 N.Y.S.2d 235 [1995], lv. denied 88 N.Y.2d 850, 644 N.Y.S.2d 697, 667 N.E.2d 347 [1996] ).   Were we to consider it, we would find County Court's error to be harmless in light of the overwhelming evidence of defendant's guilt (see People v. Kello, 96 N.Y.2d 740, 744, 723 N.Y.S.2d 111, 746 N.E.2d 166 [2001];  People v. Wright, supra at 876-877, 773 N.Y.S.2d 486).

 Finally, defendant contends that he was not properly sentenced as a second felony offender because no second felony offender statement was filed by the People prior to sentencing (see CPL 400.21[2] ).   We agree that the complete failure to file a felony offender statement prior to sentencing renders the sentence invalid as a matter of law (see People v. Pierre, 8 A.D.3d 904, 907, 780 N.Y.S.2d 389 [2004], lv. denied 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680 [2004];  People v. Davis, 302 A.D.2d 866, 867, 754 N.Y.S.2d 481 [2003], lv. denied 100 N.Y.2d 561, 763 N.Y.S.2d 818, 795 N.E.2d 44 [2003] ).   Since the People concede that there is no such statement in the record here, we must remit the matter to County Court for resentencing in compliance with CPL 400.21.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed;  matter remitted to the County Court of Clinton County for resentencing;  and, as so modified, affirmed.

ROSE, J.

CREW III, J.P., PETERS, SPAIN and LAHTINEN, JJ., concur.