Opinion
August 12, 1991
Appeal from the County Court, Westchester County (Aldrich, J.).
Ordered that the judgment is affirmed.
Since the defendant was not indicted for criminal facilitation in the fourth degree, the only crime of which he was convicted, it had to have been charged as a lesser included offense. However, a comparative evaluation of the two operative statutes, rape in the first degree (Penal Law § 130.35) and criminal facilitation in the fourth degree (Penal Law § 115.00) reveals that the latter crime is not a lesser included offense of the former. It is theoretically possible to commit rape in the first degree without intending to aid anyone else in the commission of a felony (see, People v Glover, 57 N.Y.2d 61; People v Weissinger, 104 A.D.2d 917).
It is error for the trial court to consider or submit to the jury a crime arising out of a criminal transaction that is not, in fact, a lesser included offense of a crime for which the defendant had been indicted, arising out of that transaction, unless the defendant, by acquiescing in or affirmatively requesting the lesser charge, waives his right to complain of the trial court's error (People v Ford, 62 N.Y.2d 275). There is now no question that the defendant's trial counsel requested the criminal facilitation charge. Thus, the defendant has waived appellate review of the error.
We have considered the defendant's remaining contentions and find that they do not warrant reversal. Mangano, P.J., Rosenblatt, Miller and Ritter, JJ., concur.