People v. Williams

95 A.D.2d 726, 464 N.Y.S.2d 135, 1983 N.Y. App. Div. LEXIS 18622

Opinions

— Judgment, Supreme Court, New York County (Allen Murray Myers, J.), rendered November 12,1981, which convicted defendant, following a jury trial, of the crime of assault in the third degree, and sentenced him to a term of imprisonment of one year, affirmed. In an indictment, filed April 18, 1980, defendant was charged with two counts of robbery in the second degree (Penal Law, § 160.10). At the request of defense trial counsel, the trial court instructed the jury that the crime of assault in the third degree was a lesser included offense of the crime of robbery in the second degree. Commendably, the People concede that the trial court erred in its instruction since “assault in the third degree is not a ‘lesser included offense’ of * * * robbery [in the second degree]” {People v Miguel, 53 NY2d 920, 923). It is stated in CPL 300.50 (subd 1), in pertinent part, that: “If there is no reasonable view of the evidence which would support a finding [of a lesser included offense], the court may not submit such lesser offense. Any error respecting such submission, however, is waived by the defendant unless he objects thereto before the jury retires to deliberate”. We held in People v Ford (91 AD2d 589, application for lv to app granted 58 NY2d 978) that “[a] defendant cannot waive his right to object to the submission of a lesser count when that lesser count is not a valid lesser included offense”. However, our ruling in People v Ford is inapplicable herein. This defendant expressly requested the instruction; while in People v Ford the defendant passively did not object. We find this difference in the actions of these two defendants to the instruction to be significant, in determining if there was a binding waiver of error. When “the error in the charge was * * * committed at the request of defendant, he [defendant] certainly should not be permitted to complain” (People v Hille, 42 AD2d 881, 882). Therefore, upon the instant facts, we find a binding waiver. Sandler, J.P., and Silverman, J., concur, each in a separate memorandum; Sullivan and Ross, JJ., concur in the memorandum for the list; Milonas, J., concurs in the memorandum for the list, and in each of the separate concurring memoranda, as follows: