"[A] court should avoid doing anything, such as submitting lower crimes in an inappropriate case, that would constitute an invitation to the jury to foreswear its duty and return a compromise or otherwise unwarranted verdict" (People v. Mussenden, 308 N.Y. 558, 563; see also People v. Butler, 84 N.Y.2d 627, 631-633). Here, by charging manslaughter in the first degree, the court allowed the jury to reach a compromise on the facts to avoid convicting the defendant of the greater crime (see People v. Mussenden, supra; People v. Dugarm, 49 A.D.2d 674, 675), or of the correctly charged lesser-included offense of manslaughter in the second degree (reckless manslaughter) (see CPL 300.50).

Finally, the defendant's claim that the verdict is repugnant in that it represents an improper compromise on the question of guilt is unpreserved for appellate review in light of the fact that no protest to the verdict was registered until after the jury had been dismissed (see, People v Satloff, 56 N.Y.2d 745, 746; People v Stahl, 53 N.Y.2d 1048, 1050; People v James, 112 A.D.2d 380, 381; see also, CPL 470.05). In any event, the verdict is not repugnant as a matter of law (see, People v Tucker, 55 N.Y.2d 1, 7). On these facts, it cannot be said that this verdict was the result of an improper compromise on the question of guilt (see, People v Montgomery, 116 A.D.2d 669, 670; see also, People v Dugarm, 49 A.D.2d 674, 675). O'Brien, J.P., Copertino, Pizzuto and Santucci, JJ., concur.

In this same vein, the instant case does not involve a compromise verdict (cf., People v Dugarm, 49 A.D.2d 674) since the Trial Judge's findings of fact clearly support a finding of guilt on the greater crime of robbery in the second degree. Thus, instead of a compromise on the question of guilt, the verdict represents an exercise of leniency by the trier of fact in defendant's favor" (People v Montgomery, supra, at 670).

However, because defendant affirmatively requested a manslaughter charge, he cannot now be heard to complain that such was considered by the trial court. Moreover, the danger attendant upon charging a lesser included offense — that the jury would be invited to bring in a compromise verdict — was not present at this bench trial (People v Dugarm, 49 A.D.2d 674, 675). We have considered defendant's remaining arguments and find them to be without merit.

In this same vein, the instant case does not involve a compromise verdict (cf. People v Dugarm, 49 A.D.2d 674) since the Trial Judge's findings of fact clearly support a finding of guilt on the greater crime of robbery in the second degree. Thus, instead of a compromise on the question of guilt, the verdict represents an exercise of leniency by the trier of fact in defendant's favor.

In these circumstances the court erred in charging manslaughter in the first degree as a lesser included crime of murder in the second degree. "The court improperly gave the jury an opportunity to compromise on the facts, in their reluctance to convict defendant of the greater crime" ( People v Dugarm, 49 A.D.2d 674, 675). Since the jury acquitted defendant of the charge of murder in the second degree, and the evidence shows that defendant is not guilty of manslaughter in the first degree, the indictment must be dismissed. Concur — Kupferman, J.P., Lupiano and Fein, JJ.

That may very well be true; but it does not help the prosecution here, because defendant was not charged in the indictment with giving unlawful gratuities, and since the latter is not a lesser included offense of bribery in the second degree, defendant cannot be convicted of giving an unlawful gratuity. Since defendant was acquitted of the charges contained in the indictment, and the court lacked authority to submit the crime of giving unlawful gratuities, the judgment must be reversed and the indictment dismissed (see People v Wall, 34 A.D.2d 215, affd 29 N.Y.2d 863; People v Dugarm, 49 A.D.2d 674). We find no merit in the other assignments of error.